The Child Support (Maintenance Calculations and Special Cases) Regulations (Northern Ireland) 2001

Part IGeneral

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Child Support (Maintenance Calculations and Special Cases) Regulations (Northern Ireland) 2001 and shall come into operation as follows—

(a)subject to sub-paragraph (b), in relation to a particular case on the day on which section 1(3) of, and Schedule 1 to, the Act comes into operation in relation to that type of case;

(b)regulation 4(1) and (2) and, for the purposes of those provisions, this regulation shall come into operation on 31st January 2001.

(2) In these Regulations—

“the Order” means the Child Support (Northern Ireland) Order 1991;

“the Contributions and Benefits Act” means the Social Security Contributions and Benefits (Northern Ireland) Act 1992(1);

“the Great Britain Contributions and Benefits Act” means the Social Security Contributions and Benefits Act 1992(2);

“the Children Order” means the Children (Northern Ireland) Order 1995(3);

“the Jobseekers Order” means the Jobseekers (Northern Ireland) Order 1995(4);

“the Act” means the Child Support, Pensions and Social Security Act (Northern Ireland) 2000(5);

“an authority” has the same meaning as in Article 2 of the Children Order;

“couple” means a man and a woman who are—

“course of advanced education” means—

“day” includes any part of a day;

“day to day care” means—

and for the purpose of this definition—

“the Decisions and Appeals Regulations” means the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999(7);

“disabled person’s tax credit” means a disabled person’s tax credit under section 128 of the Contributions and Benefits Act(8);

“effective date” means the date on which a maintenance calculation takes effect for the purposes of the Order;

“employed earner” means a person—

“family” means—

“home” means—

and for the purpose of determining the principal home in which a person normally lives no regard shall be had to residence in a residential care home or a nursing home during a period which does not exceed 52 weeks or, where it appears to the Department that the person will return to his principal home after that period has expired, such longer period as the Department considers reasonable to allow for the return of that person to that home;

“the Income Support Regulations” means the Income Support (General) Regulations (Northern Ireland) 1987(10);

“the Maintenance Calculation Procedure Regulations” means the Child Support (Maintenance Calculation Procedure) Regulations 2001(11);

“net weekly income” has the meaning given in the Schedule;

“nursing home” has the same meaning as in regulation 19(2) of the Income Support Regulations(12);

“occupational pension scheme” means such a scheme within the meaning in section 1 of the Pension Schemes (Northern Ireland) Act 1993(13) and which is approved for the purposes of Part XIV of the Income and Corporation Taxes Act 1988(14);

“partner” means—

“patient” means a person (other than a person who is serving a sentence of imprisonment or detention in a juvenile justice centre within the meaning of Article 51 of the Criminal Justice (Children) (Northern Ireland) Order 1998(15) or a young offenders centre within the meaning of section 2 of the Treatment of Offenders Act (Northern Ireland) 1968(16)) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 1975(17);

“person” does not include an authority;

“personal pension scheme” means such a scheme within the meaning in section 1 of the Pension Schemes (Northern Ireland) Act 1993(18) and which is approved for the purposes of Part XIV of the Income and Corporation Taxes Act 1988;

“polygamous marriage” means any marriage during the subsistence of which a party to it is married to more than one person and in respect of which any ceremony of marriage took place under the law of a country which at the time of that ceremony permitted polygamy;

“prisoner” means a person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court other than a person whose detention is under the Mental Health (Northern Ireland) Order 1986(19);

“relevant training scheme” means—

for purposes which include the training of persons who, at the beginning of their training, are under the age of 18;

“relevant week” means—

“residential care home” has the same meaning as in regulation 19(2) of the Income Support Regulations(24);

“retirement annuity contract” means an annuity contract for the time being approved by the Board of Inland Revenue as having for its main object the provision of a life annuity in old age or the provision of an annuity for a partner or dependant and in respect of which relief from income tax may be given on any premium;

“self-employed earner” means a person who is gainfully employed in the United Kingdom or the Republic of Ireland otherwise than in employed earner’s employment (whether or not he is also employed in such employment);

“student” means a person, other than a person in receipt of a training allowance, who is aged less than 19 and attending a full-time course of advanced education or who is aged 19 or over and attending a full-time course of study at an educational establishment; and for the purposes of this definition—

“training allowance” means an allowance payable under section 1 of the Employment and Training Act (Northern Ireland) 1950;

“working families' tax credit” means a working families' tax credit under section 127 of the Contributions and Benefits Act(26); and

“year” means a period of 52 weeks.

(3) The other description of children prescribed for the purposes of paragraph 10C(2)(b) of Schedule 1 to the Order (relevant other children) is children other than qualifying children in respect of whom the non-resident parent or his partner would receive child benefit under Part IX of the Contributions and Benefits Act but who do not solely because the conditions set out in section 142 of that Act (persons outside Northern Ireland) are not met.

Part IICalculation of Child Support Maintenance

Calculation of amounts

2.—(1) Where any amount is to be considered in connection with any calculation made under these Regulations or under Schedule 1 to the Order, it shall be calculated as a weekly amount and, except where the context otherwise requires, any reference to such an amount shall be construed accordingly.

(2) Subject to paragraph (3), where any calculation made under these Regulations or under Schedule 1 to the Order 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, otherwise it shall be disregarded.

(3) Where the calculation of the basic rate of child support maintenance or the reduced rate of child support maintenance results in a fraction of a pound that fraction shall be treated as a pound if it is either one half or exceeds one half, otherwise it shall be disregarded.

(4) In taking account of any amounts or information required for the purposes of making a maintenance calculation, the Department shall apply the dates or periods specified in these Regulations as applicable to those amounts or information, provided that if it becomes aware of a material change of circumstances occurring after such date or period, but before the effective date, it shall take that change of circumstances into account.

(5) Information required for the purposes of making a maintenance calculation in relation to the following shall be the information applicable at the effective date—

(a)the number of qualifying children;

(b)the number of relevant other children;

(c)whether the non-resident parent receives a benefit, pension or allowance prescribed for the purposes of paragraph 4(1)(b) of Schedule 1 to the Order;

(d)whether the non-resident parent or his partner receives a benefit prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the Order; and

(e)whether paragraph 5(a) of Schedule 1 to the Order applies to the non-resident parent.

Reduced Rate

3.  The reduced rate is an amount calculated as follows—

Flat rate

4.—(1) The following benefits, pensions and allowances are prescribed for the purposes of paragraph 4(1)(b) of Schedule 1 to the Order—

(a)under the Contributions and Benefits Act—

(i)bereavement allowance under section 39B(27);

(ii)category A retirement pension under section 44(28);

(iii)category B retirement pension under section 48C(29);

(iv)category C and category D retirement pensions under section 78(30);

(v)incapacity benefit under section 30A(31);

(vi)invalid care allowance under section 70(32);

(vii)maternity allowance under section 35(33);

(viii)severe disablement allowance under section 68(34);

(ix)industrial injuries benefit under section 94;

(x)widowed mother’s allowance under section 37;

(xi)widowed parent’s allowance under section 39A(35), and

(xii)widow’s pension under section 38;

(b)contribution-based jobseeker’s allowance under Article 3 of the Jobseekers Order(36);

(c)a social security benefit paid by a country other than the United Kingdom;

(d)a training allowance (other than a relevant training scheme); and

(e)a war disablement pension or war widow’s pension within the meaning of section 146(2) of the Contributions and Benefits Act or a pension which is analogous to such a pension paid by the government of a country outside the United Kingdom.

(2) The benefits prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the Order are—

(a)income support under section 123 of the Contributions and Benefits Act(37);

(b)an income-based jobseeker’s allowance under Article 3 of the Jobseekers Order.

(3) Where the non-resident parent is liable to pay a flat rate by virtue of paragraph 4(2) of Schedule 1 to the Order—

(a)if he has one partner, then the amount payable by the non-resident parent shall be half the flat rate; and

(b)if he has more than one partner, then the amount payable by the non-resident parent shall be the result of apportioning the flat rate equally among him and his partners.

Nil rate

5.—(1) The rate payable is nil where the non-resident parent is—

(a)a student;

(b)a child within the meaning given in Article 3 of the Order;

(c)a prisoner;

(d)a person who is 16 or 17 years old and—

(i)in receipt of income support or an income-based jobseeker’s allowance, or

(ii)a member of a couple whose partner is in receipt of income support or an income-based jobseeker’s allowance;

(e)a person receiving an allowance in respect of a relevant training scheme;

(f)a person in a residential care home or nursing home who—

(i)is in receipt of a pension, benefit or allowance specified in regulation 4(1) or (2), or

(ii)has the whole or part of the cost of his accommodation met by a Health and Social Services Board or an HSS trust;

(g)a patient in hospital who is in receipt of income support whose applicable amount includes an amount under paragraph 1(a) or (b) of Schedule 7 to the Income Support Regulations(38) (patient for more than 6 weeks);

(h)a person in receipt of a benefit specified in regulation 4(1) the amount of which has been reduced in accordance with the provisions of regulations 4(d)(39) and 6(40) of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 1975 (circumstances in which personal benefit is to be adjusted and adjustment of personal benefit after 52 weeks in hospital);

(i)a person who would be liable to pay the flat rate because he satisfies the description in paragraph 4(1)(c) of Schedule 1 to the Order but his net weekly income, inclusive of—

(i)any benefit, pension or allowance that he receives which is prescribed for the purposes of paragraph 4(1)(b) of Schedule 1 to the Order, and

(ii)any benefit that he or his partner receives which is prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the Order,

is less that £5 a week.

(2) In this regulation—

(a)a “Health and Social Services Board” means a Health and Social Services Board established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972(41);

(b)an “HSS trust” means a Health and Social Services trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991(42), by which functions are exercisable by virtue of an authorisation for the time being in operation under Article 3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994(43).

Apportionment

6.  If, in making the apportionment required by regulation 4(3) or paragraph 6 of Schedule 1 to the Order(44), the effect of the application of regulation 2(2) (rounding) would be such that the aggregate amount of child support maintenance payable by a non-resident parent would be different from the aggregate amount payable before any apportionment, the Department shall adjust that apportionment so as to eliminate that difference; and that adjustment shall be varied from time to time so as to secure that, taking one week with another and so far as is practicable, each person with care receives the amount which that person with care would have received if no adjustment had been made under this paragraph.

Shared care

7.—(1) For the purposes of paragraphs 7 and 8 of Schedule 1 to the Order a night will count for the purposes of shared care where the non-resident parent—

(a)has the care of a qualifying child overnight; and

(b)the qualifying child stays at the same address as the non-resident parent.

(2) For the purposes of paragraphs 7 and 8 of Schedule 1 to the Order, a non-resident parent has the care of a qualifying child when he is looking after the child.

(3) Subject to paragraph (4), in determining the number of nights for the purposes of shared care, the Department shall consider the 12 month period ending with the relevant week and for this purpose “relevant week” has the same meaning as in the definition of day to day care in regulation 1(2).

(4) The circumstances in which the Department may have regard to a number of nights over less than a 12 month period are where there has been no pattern for the frequency with which the non-resident parent looks after the qualifying child for the 12 months preceding the relevant week, or the Department is aware that a change in that frequency is intended, and in that case it shall have regard to such lesser period as may seem to the Department to be appropriate, and the Table in paragraph 7(4) and the period in paragraph 8(2) of Schedule 1 to the Order shall have effect subject to the adjustment described in paragraph (5).

(5) Where paragraph (4) applies, the Department shall adjust the number of nights in that lesser period by applying to that number the ratio which the period of 12 months bears to that lesser period.

(6) Where a child is a boarder at a boarding school, or is a patient in a hospital, the person who, but for those circumstances, would otherwise have care of the child overnight, shall be treated as providing that care during the periods in question.

Part IIISpecial Cases

Persons treated as non-resident parents

8.—(1) Where the circumstances of a case are that—

(a)two or more persons who do not live in the same household each provide day to day care for the same qualifying child; and

(b)at least one of those persons is a parent of the child,

that case shall be treated as a special case for the purposes of the Order.

(2) For the purposes of this case a parent who provides day to day care for a child of his is to be treated as a non-resident parent for the purposes of the Order in the following circumstances—

(a)a parent who provides such care to a lesser extent than the other parent, person or persons who provide such care for the child in question; or

(b)where the persons mentioned in paragraph (1)(a) include both parents and the circumstances are such that care is provided to the same extent by both but each provides care to an extent greater than or equal to any other person who provides such care for that child—

(i)the parent who is not in receipt of child benefit for the child in question, or

(ii)if neither parent is in receipt of child benefit for that child, the parent who, in the opinion of the Department, will not be the principal provider of day to day care for that child.

(3) For the purposes of this regulation and regulation 10 “child benefit” means child benefit payable under Part IX of the Contributions and Benefits Act(45).

Care provided in part by an authority

9.—(1) This regulation applies where paragraph (2) applies and the rate of child support maintenance payable is the basic rate, or the reduced rate, or has been calculated following agreement to a variation where the non-resident parent’s liability would otherwise have been a flat rate or the nil rate.

(2) Where the circumstances of a case are that the care of the qualifying child is shared between the person with care and an authority and—

(a)the qualifying child is in the care of an authority for 52 nights or more in the 12 month period ending with the relevant week;

(b)where, in the opinion of the Department, a period other than the 12 month period mentioned in sub-paragraph (a) is more representative of the current arrangements for the care of the qualifying child, the qualifying child is in the care of an authority during that period for no fewer that the number of nights which bears the same ratio to 52 nights as that period bears to 12 months; or

(c)it is intended that the qualifying child shall be in the care of an authority for a number of nights in a period from the effective date,

that case shall be treated as a special case for the purposes of the Order.

(3) In a case where this regulation applies, the amount of child support maintenance which the non-resident parent is liable to pay the person with care of that qualifying child is the amount calculated in accordance with the provisions of Part I of Schedule 1 to the Order and decreased in accordance with this regulation.

(4) First, there is to be a decrease according to the number of nights spent or to be spent by the qualifying child in the care of an authority during the period under consideration.

(5) Where paragraph (2)(b) or (c) applies, the number of nights in the period under consideration shall be adjusted by the ratio which the period of 12 months bears to the period under consideration.

(6) After any adjustment under paragraph (5), the amount of the decrease for one child is set out in the following Table—

(7) If the non-resident parent and the person with care have more than one qualifying child, the applicable decrease is the sum of the appropriate fractions in the Table divided by the number of such qualifying children.

(8) In a case where the amount of child support maintenance which the non-resident parent is liable to pay in relation to the same person with care is to be decreased in accordance with the provisions of both this regulation and of paragraph 7 of Schedule 1 to the Order, read with regulation 7, the applicable decrease is the sum of the appropriate fractions derived under those provisions.

(9) If the application of this regulation would decrease the weekly amount of child support maintenance (or the aggregate of all such amounts) payable by the non-resident parent to less than the rate stated in or prescribed for the purposes of paragraph 4(1) of Schedule 1 to the Order, he is instead liable to pay child support maintenance at a rate equivalent to that rate, apportioned (if appropriate) in accordance with paragraph 6 of Schedule 1 to the Order and regulation 6.

(10) Where a qualifying child is a boarder at a boarding school or is an in-patient at a hospital, the qualifying child shall be treated as being in the care of an authority for any night that the authority would otherwise have been providing such care.

(11) A child is in the care of an authority for any night in which he is being looked after by an authority within the meaning of Article 25 of the Children Order.

Care provided for relevant other child by an authority

10.  Where a child other than a qualifying child is cared for in part or in full by an authority and the non-resident parent or his partner receives child benefit for that child, the child is a relevant other child for the purposes of Schedule 1 to the Order.

Non-resident parent liable to pay maintenance under a maintenance order

11.—(1) Subject to paragraph (2), where the circumstances of a case are that—

(a)an application for child support maintenance is made or treated as made, as the case may be, with respect to a qualifying child and a non-resident parent; and

(b)an application for child support maintenance for a different child cannot be made under the Order but that non-resident parent is liable to pay maintenance under a maintenance order for that child,

that case shall be treated as a special case for the purposes of the Order.

(2) This regulation applies where the rate of child support maintenance payable is the basic rate, or the reduced rate, or has been calculated following agreement to a variation where the non-resident parent’s liability would otherwise have been a flat rate or the nil rate.

(3) Where this regulation applies, the amount of child support maintenance payable by the non-resident parent shall be ascertained by—

(a)calculating the amount of maintenance payable as if the number of qualifying children of that parent included any children with respect to whom he is liable to make payments under an order referred to in paragraph (1)(b); and

(b)apportioning the amount so calculated between the qualifying children and the children with respect to whom he is liable to make payments under the order referred to in paragraph (1)(b),

and the amount payable shall be the amount apportioned to the qualifying children, and the amount payable to each person with care shall be that amount subject to the application of apportionment under paragraph 6 of Schedule 1 to the Order and the shared care provisions in paragraph 7 of that Schedule.

(4) In a case where this regulation applies paragraph 7 of Schedule 1 to the Order (shared care) and regulation 9 (care provided in part by an authority) shall not apply in relation to a child in respect of whom the non-resident parent is liable to make payments under a maintenance order as provided in paragraph (1)(b).

Child who is a boarder or an in-patient in hospital

12.—(1) Where the circumstances of the case are that—

(a)a qualifying child is a boarder at a boarding school or is an in-patient in a hospital; and

(b)by reason of those circumstances, the person who would otherwise provide day to day care is not doing so,

that case shall be treated as a special case for the purposes of the Order.

(2) For the purposes of this case, Article 4(3)(b) of the Order shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the person who would usually be providing such care for that child but for the circumstances specified in paragraph (1).

Child who is allowed to live with his parent under Article 27(5) of the Children Order

13.—(1) Where the circumstances of a case are that a qualifying child who is in the care of an authority is allowed by the authority to live with a parent of his under Article 27(5) of the Children Order, that case shall be treated as a special case for the purposes of the Order.

(2) For the purposes of this case, Article 4(3)(b) of the Order shall be modified so that for the reference to the person who usually provides day to day care for the child there shall be substituted a reference to the parent of the child whom the authority allow the child to live with under Article 27(5) of the Children Order.

Person with part-time care who is not a non-resident parent

14.—(1) Where the circumstances of a case are that—

(a)two or more persons who do not live in the same household each provide day to day care for the same qualifying child; and

(b)those persons do not include any parent who is treated as a non-resident parent of that child by regulation 8(2),

that case shall be treated as a special case for the purposes of the Order.

(2) For the purposes of this case—

(a)the person whose application for a maintenance calculation is being proceeded with shall, subject to sub-paragraph (b), be entitled to receive all of the child support maintenance payable under the Order in respect of the child in question;

(b)on request being made to the Department by—

(i)that person, or

(ii)any other person who is providing day to day care for that child and who intends to continue to provide that care,

the Department may make arrangements for the payment of any child support maintenance payable under the Order to the persons who provide such care in the same ratio as that in which it appears to the Department that each is to provide such care for the child in question;

(c)before making an arrangement under sub-paragraph (b), the Department shall consider all of the circumstances of the case and in particular the interests of the child, the present arrangements for the day to day care of the child in question and any representations or proposals made by the persons who provide such care for that child.

Part IVRevocation and Savings

Revocation and savings

15.—(1) Subject to paragraphs (2) to (4), the Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992(46) (“the 1992 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—

(a)an application was made and not determined for—

(i)a maintenance assessment;

(ii)a departure direction, or

(iii)a revision or supersession of a decision;

(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 1992 Regulations shall continue to apply for the purposes of—

(aa)thethe decision on the application referred to in sub-paragraph (a);

(bb)thethe revision or supersession referred to in sub-paragraph (b);

(cc)thethe ability to apply for the revision or the departure direction referred to in sub-paragraph (c) and the decision whether to revise or to give a departure direction following any such application;

(dd)theany appeal outstanding or made during the time limit referred to in sub-paragraph (d); or

(ee)theany revision, supersession, appeal or application for a departure direction in relation to a decision, ability to apply or appeal referred to in sub-paragraphs (aa) to (dd).

(3) Where immediately before the commencement date in respect of a particular case an interim maintenance assessment was in force, the provisions of the 1992 Regulations shall continue to apply for the purposes of the decision under Article 19 of the Order(47) to make a maintenance assessment calculated in accordance with Part I of Schedule 1 to the Order before its amendment by the Act and any revision, supersession or appeal in relation to that decision.

(4) Where under regulation 28(1) of the Child Support (Transitional Provisions) Regulations (Northern Ireland) 2001(48) an application for a maintenance calculation is treated as an application for a maintenance assessment, the provisions of the 1992 Regulations shall continue to apply for the purposes of the determination of the application and any revision, supersession or appeal in relation to any such assessment made.

(5) Where after the commencement date a maintenance assessment is revised from a date which is prior to the commencement date the 1992 Regulations shall apply for the purposes of that revision.

(6) For the purposes of this regulation—

(a)“departure direction”, “maintenance assessment” and “interim maintenance assessment” have the same meaning as in Article 2(2) of the Order(49) before its amendment by the Act; and

(b)“revision or supersession” means a revision or supersession of a decision under Article 18 or 19 of the Order(50) before their amendment by the Act.