The basic principlesE+W+S

1 The duty to maintain.E+W+S

(1)For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him.

(2)For the purposes of this Act, [F2a non-resident parent] shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.

(3)Where a [F3maintenance calculation] made under this Act requires the making of periodical payments, it shall be the duty of the [F2non-resident parent] with respect to whom the [F1calculation] was made to make those payments.

2 Welfare of children: the general principle.E+W+S

Where, in any case which falls to be dealt with under this Act, the Secretary of State F4... is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision.

3 Meaning of certain terms used in this Act.E+W+S

(1)A child is a “qualifying child” if—

(a)one of his parents is, in relation to him, [F2a non-resident parent]; or

(b)both of his parents are, in relation to him, [F2non-resident parents].

(2)The parent of any child is [F2a “non-resident parent”], in relation to him, if—

(a)that parent is not living in the same household with the child; and

(b)the child has his home with a person who is, in relation to him, a person with care.

(3)A person is a “person with care”, in relation to any child, if he is a person—

(a)with whom the child has his home;

(b)who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and

(c)who does not fall within a prescribed category of person.

(4)The Secretary of State shall not, under subsection (3)(c), prescribe as a category—

(a)parents;

(b)guardians;

(c)persons in whose favour residence orders under section 8 of the M1Children Act 1989 are in force;

(d)in Scotland, persons [F5with whom a child is to live by virtue of a residence order under section 11 of the Children (Scotland) Act 1995.]

(5)For the purposes of this Act there may be more than one person with care in relation to the same qualifying child.

(6)Periodical payments which are required to be paid in accordance with a [F3maintenance calculation] are referred to in this Act as “child support maintenance”.

(7)Expressions are defined in this section only for the purposes of this Act.

4 Child support maintenance.E+W+S

(1)A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the [F2non-resident parent] may apply to the Secretary of State for a [F3maintenance calculation] to be made under this Act with respect to that child, or any of those children.

(2)Where a [F3maintenance calculation] has been made in response to an application under this section the Secretary of State may, if the person with care or [F2non-resident parent] with respect to whom the [F1calculation] was made applies to him under this subsection, arrange for—

(a)the collection of the child support maintenance payable in accordance with the [F1calculation];

(b)the enforcement of the obligation to pay child support maintenance in accordance with the [F1calculation].

(3)Where an application under subsection (2) for the enforcement of the obligation mentioned in subsection (2)(b) authorises the Secretary of State to take steps to enforce that obligation whenever he considers it necessary to do so, the Secretary of State may act accordingly.

(4)A person who applies to the Secretary of State under this section shall, so far as that person reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State F6... being provided with the information which is required to enable—

(a)the [F2non-resident parent] to be [F7identified or] traced (where that is necessary);

(b)the amount of child support maintenance payable by the [F2non-resident parent] to be assessed; and

(c)that amount to be recovered from the [F2non-resident parent].

(5)Any person who has applied to the Secretary of State under this section may at any time request him to cease acting under this section.

(6)It shall be the duty of the Secretary of State to comply with any request made under subsection (5) (but subject to any regulations made under subsection (8)).

(7)The obligation to provide information which is imposed by subsection (4)—

(a)shall not apply in such circumstances as may be prescribed; and

(b)may, in such circumstances as may be prescribed, be waived by the Secretary of State.

(8)The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.

(9)No application may be made under this section if there is in force with respect to the person with care and [F2non-resident parent] in question a [F3maintenance calculation] made in response to an application [F8treated as made] under section 6.

[F9(10)No application may be made at any time under this section with respect to a qualifying child or any qualifying children if—

(a)there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order [F10made before a prescribed date], in respect of that child or those children and the person who is, at that time, the [F2non-resident parent]; or

[F11(aa)a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or]

(b)benefit is being paid to, or in respect of, a parent with care of that child or those children.

(11)In subsection (10) “benefit” means any benefit which is mentioned in, or prescribed by regulations under, section 6(1).]

5 Child support maintenance: supplemental provisions.E+W+S

(1)Where—

(a)there is more than one person with care of a qualifying child; and

(b)one or more, but not all, of them have parental responsibility for F12... the child;

no application may be made for a [F3maintenance calculation] with respect to the child by any of those persons who do not have parental responsibility for F12... the child.

(2)Where more than one application for a [F3maintenance calculation] is made with respect to the child concerned, only one of them may be proceeded with.

(3)The Secretary of State may by regulations make provision as to which of two or more applications for a [F3maintenance calculation] with respect to the same child is to be proceeded with.

[F136 Applications by those claiming or receiving benefit.E+W+S

(1)This section applies where income support, an income-based jobseeker’s allowance or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child who is also a person with care of the child.

(2)In this section, that person is referred to as “the parent”.

(3)The Secretary of State may—

(a)treat the parent as having applied for a maintenance calculation with respect to the qualifying child and all other children of the non-resident parent in relation to whom the parent is also a person with care; and

(b)take action under this Act to recover from the non-resident parent, on the parent’s behalf, the child support maintenance so determined.

(4)Before doing what is mentioned in subsection (3), the Secretary of State must notify the parent in writing of the effect of subsections (3) and (5) and section 46.

(5)The Secretary of State may not act under subsection (3) if the parent asks him not to (a request which need not be in writing).

(6)Subsection (1) has effect regardless of whether any of the benefits mentioned there is payable with respect to any qualifying child.

(7)Unless she has made a request under subsection (5), the parent shall, so far as she reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State’s being provided with the information which is required to enable—

(a)the non-resident parent to be identified or traced;

(b)the amount of child support maintenance payable by him to be calculated; and

(c)that amount to be recovered from him.

(8)The obligation to provide information which is imposed by subsection (7)—

(a)does not apply in such circumstances as may be prescribed; and

(b)may, in such circumstances as may be prescribed, be waived by the Secretary of State.

(9)If the parent ceases to fall within subsection (1), she may ask the Secretary of State to cease acting under this section, but until then he may continue to do so.

(10)The Secretary of State must comply with any request under subsection (9) (but subject to any regulations made under subsection (11)).

(11)The Secretary of State may by regulations make such incidental or transitional provision as he thinks appropriate with respect to cases in which he is asked under subsection (9) to cease to act under this section.

(12)The fact that a maintenance calculation is in force with respect to a person with care does not prevent the making of a new maintenance calculation with respect to her as a result of the Secretary of State’s acting under subsection (3).]

7 Right of child in Scotland to apply for [F1calculation].S

(1)A qualifying child who has attained the age of 12 years and who is habitually resident in Scotland may apply to the Secretary of State for a [F3maintenance calculation] to be made with respect to him if—

(a)no such application has been made by a person who is, with respect to that child, a person with care or [F2a non-resident parent]; or

[F14(b)no parent has been treated under section 6(3) as having applied for a maintenance calculation with respect to the child.]

(2)An application made under subsection (1) shall authorise the Secretary of State to make a [F3maintenance calculation] with respect to any other children of the [F2non-resident parent] who are qualifying children in the care of the same person as the child making the application.

(3)Where a [F3maintenance calculation] has been made in response to an application under this section the Secretary of State may, if the person with care, the [F2non-resident parent] with respect to whom the [F1calculation] was made or the child concerned applies to him under this subsection, arrange for—

(a)the collection of the child support maintenance payable in accordance with the [F1calculation];

(b)the enforcement of the obligation to pay child support maintenance in accordance with the [F1calculation].

(4)Where an application under subsection (3) for the enforcement of the obligation mentioned in subsection (3)(b) authorises the Secretary of State to take steps to enforce that obligation whenever he considers it necessary to do so, the Secretary of State may act accordingly.

(5)Where a child has asked the Secretary of State to proceed under this section, the person with care of the child, the [F2non-resident parent] and the child concerned shall, so far as they reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State F15... being provided with the information which is required to enable—

(a)the [F2non-resident parent] to be traced (where that is necessary);

(b)the amount of child support maintenance payable by the [F2non-resident parent] to be assessed; and

(c)that amount to be recovered from the [F2non-resident parent].

(6)The child who has made the application (but not the person having care of him) may at any time request the Secretary of State to cease acting under this section.

(7)It shall be the duty of the Secretary of State to comply with any request made under subsection (6) (but subject to any regulations made under subsection (9)).

(8)The obligation to provide information which is imposed by subsection (5)—

(a)shall not apply in such circumstances as may be prescribed by the Secretary of State; and

(b)may, in such circumstances as may be so prescribed, be waived by the Secretary of State.

(9)The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.

[F16(10)No application may be made at any time under this section by a qualifying child if

[F17(a)]there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order [F18made before a prescribed date], in respect of that child and the person who is, at that time, the [F2non-resident parent] [F19or

(b)a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made.]]

8 Role of the courts with respect to maintenance for children.E+W+S

(1)This subsection applies in any case where [F20the Secretary of State] would have jurisdiction to make a [F3maintenance calculation] with respect to a qualifying child and [F2a non-resident parent] of his on an application duly made [F21(or treated as made)] by a person entitled to apply for such [F1a calculation] with respect to that child.

(2)Subsection (1) applies even though the circumstances of the case are such that [F20the Secretary of State] would not make [F1a calculation] if it were applied for.

(3)[F22Except as provided in subsection (3A),] in any case where subsection (1) applies, no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and [F2non-resident parent] concerned.

[F23(3A)Unless a maintenance calculation has been made with respect to the child concerned, subsection (3) does not prevent a court from varying a maintenance order in relation to that child and the non-resident parent concerned—

(a)if the maintenance order was made on or after the date prescribed for the purposes of section 4(10)(a) or 7(10)(a); or

(b)where the order was made before then, in any case in which section 4(10) or 7(10) prevents the making of an application for a maintenance calculation with respect to or by that child.]

(4)Subsection (3) does not prevent a court from revoking a maintenance order.

(5)The Lord Chancellor or in relation to Scotland the Lord Advocate may by order provide that, in such circumstances as may be specified by the order, this section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a)a written agreement (whether or not enforceable) provides for the making, or securing, by [F2a non-resident parent] of the child of periodical payments to or for the benefit of the child; and

(b)the maintenance order which the court makes is, in all material respects, in the same terms as that agreement.

[F24(5A)The Lord Chancellor may make an order under subsection (5) only with the concurrence of the Lord Chief Justice.]

(6)This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a)a [F3maintenance calculation] is in force with respect to the child;

[F25(b)the non-resident parent’s net weekly income exceeds the figure referred to in paragraph 10(3) of Schedule 1 (as it has effect from time to time pursuant to regulations made under paragraph 10A(1)(b)); and]

(c)the court is satisfied that the circumstances of the case make it appropriate for the [F2non-resident parent] to make or secure the making of periodical payments under a maintenance order in addition to the child support maintenance payable by him in accordance with the [F3maintenance calculation].

(7)This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a)the child is, will be or (if the order were to be made) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation (whether or not while in gainful employment); and

(b)the order is made solely for the purposes of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provision of the instruction or training.

(8)This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a)a disability living allowance is paid to or in respect of him; or

(b)no such allowance is paid but he is disabled,

and the order is made solely for the purpose of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of any expenses attributable to the child’s disability.

(9)For the purposes of subsection (8), a child is disabled if he is blind, deaf or dumb or is substantially and permanently handicapped by illness, injury, mental disorder or congenital deformity or such other disability as may be prescribed.

(10)This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if the order is made against a person with care of the child.

(11)In this Act “maintenance order”, in relation to any child, means an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under—

(a)Part II of the M2Matrimonial Causes Act 1973;

(b)the M3Domestic Proceedings and Magistrates’ Courts Act 1978;

(c)Part III of the M4Matrimonial and Family Proceedings Act 1984;

(d)the M5Family Law (Scotland) Act 1985;

(e)Schedule 1 to the M6Children Act 1989; F26...

[F27(ea)Schedule 5, 6 or 7 to the Civil Partnership Act 2004; or]

(f)any other prescribed enactment,

and includes any order varying or reviving such an order.

[F28(12)The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.]

9 Agreements about maintenance.E+W+S

(1)In this section “maintenance agreement” means any agreement for the making, or for securing the making, of periodical payments by way of maintenance, or in Scotland aliment, to or for the benefit of any child.

(2)Nothing in this Act shall be taken to prevent any person from entering into a maintenance agreement.

(3)[F29Subject to section 4(10)(a) and section 7(10),] the existence of a maintenance agreement shall not prevent any party to the agreement, or any other person, from applying for a [F3maintenance calculation] with respect to any child to or for whose benefit periodical payments are to be made or secured under the agreement.

(4)Where any agreement contains a provision which purports to restrict the right of any person to apply for a [F3maintenance calculation], that provision shall be void.

(5)Where section 8 would prevent any court from making a maintenance order in relation to a child and [F2a non-resident parent] of his, no court shall exercise any power that it has to vary any agreement so as—

(a)to insert a provision requiring that [F2non-resident parent] to make or secure the making of periodical payments by way of maintenance, or in Scotland aliment, to or for the benefit of that child; or

(b)to increase the amount payable under such a provision.

[F30(6)In any case in which section 4(10) or 7(10) prevents the making of an application for a [F3maintenance calculation], and—

[F31(a)no parent has been treated under section 6(3) as having applied for a maintenance calculation with respect to the child; or]

[F31(b)a parent has been so treated but no maintenance calculation has been made,]

subsection (5) shall have effect with the omission of paragraph (b).]

10 Relationship between maintenance [F1calculations] and certain court orders and related matters.E+W+S

(1)Where an order of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a [F3maintenance calculation] is made, the order—

(a)shall, so far as it relates to the making or securing of periodical payments, cease to have effect to such extent as may be determined in accordance with regulations made by the Secretary of State; or

(b)where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.

(2)Where an agreement of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a [F3maintenance calculation] is made, the agreement—

(a)shall, so far as it relates to the making or securing of periodical payments, be unenforceable to such extent as may be determined in accordance with regulations made by the Secretary of State; or

(b)where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.

(3)Any regulations under this section may, in particular, make such provision with respect to—

(a)any case where any person with respect to whom an order or agreement of a kind prescribed for the purposes of subsection (1) or (2) has effect applies to the prescribed court, before the end of the prescribed period, for the order or agreement to be varied in the light of the [F3maintenance calculation] and of the provisions of this Act;

(b)the recovery of any arrears under the order or agreement which fell due before the coming into force of the [F3maintenance calculation],

as the Secretary of State considers appropriate and may provide that, in prescribed circumstances, an application to any court which is made with respect to an order of a prescribed kind relating to the making or securing of periodical payments to or for the benefit of a child shall be treated by the court as an application for the order to be revoked.

(4)The Secretary of State may by regulations make provision for—

(a)notification to be given by [F32the Secretary of State] to the prescribed person in any case where [F33he] considers that the making of a [F3maintenance calculation] has affected, or is likely to affect, any order of a kind prescribed for the purposes of this subsection;

(b)notification to be given by the prescribed person to the Secretary of State in any case where a court makes an order which it considers has affected, or is likely to affect, a [F3maintenance calculation].

(5)Rules may be made under section 144 of the M7Magistrates’ Courts Act 1980 (rules of procedure) requiring any person who, in prescribed circumstances, makes an application to a magistrates’ court for a maintenance order to furnish the court with a statement in a prescribed form, and signed by [F34an officer of the Secretary of State], as to whether or not, at the time when the statement is made, there is a [F3maintenance calculation] in force with respect to that person or the child concerned.

In this subsection—

• “maintenance order” means an order of a prescribed kind for the making or securing of periodical payments to or for the benefit of a child; and

• “prescribed” means prescribed by the rules.

Maintenance [F1calculations]E+W+S

[F3511 Maintenance calculations.E+W+S

(1)An application for a maintenance calculation made to the Secretary of State shall be dealt with by him in accordance with the provision made by or under this Act.

(2)The Secretary of State shall (unless he decides not to make a maintenance calculation in response to the application, or makes a decision under section 12) determine the application by making a decision under this section about whether any child support maintenance is payable and, if so, how much.

(3)Where—

(a)a parent is treated under section 6(3) as having applied for a maintenance calculation; but

(b)the Secretary of State becomes aware before determining the application that the parent has ceased to fall within section 6(1),

he shall, subject to subsection (4), cease to treat that parent as having applied for a maintenance calculation.

(4)If it appears to the Secretary of State that subsection (10) of section 4 would not have prevented the parent with care concerned from making an application for a maintenance calculation under that section he shall—

(a)notify her of the effect of this subsection; and

(b)if, before the end of the period of one month beginning with the day on which notice was sent to her, she asks him to do so, treat her as having applied not under section 6 but under section 4.

(5)Where subsection (3) applies but subsection (4) does not, the Secretary of State shall notify—

(a)the parent with care concerned; and

(b)the non-resident parent (or alleged non-resident parent), where it appears to him that that person is aware that the parent with care has been treated as having applied for a maintenance calculation.

(6)The amount of child support maintenance to be fixed by a maintenance calculation shall be determined in accordance with Part I of Schedule 1 unless an application for a variation has been made and agreed.

(7)If the Secretary of State has agreed to a variation, the amount of child support maintenance to be fixed shall be determined on the basis he determines under section 28F(4).

(8)Part II of Schedule 1 makes further provision with respect to maintenance calculations.]

[F3612 Default and interim maintenance decisions.E+W+S

(1)Where the Secretary of State—

(a)is required to make a maintenance calculation; or

(b)is proposing to make a decision under section 16 or 17,

and it appears to him that he does not have sufficient information to enable him to do so, he may make a default maintenance decision.

(2)Where an application for a variation has been made under section 28A(1) in connection with an application for a maintenance calculation (or in connection with such an application which is treated as having been made), the Secretary of State may make an interim maintenance decision.

(3)The amount of child support maintenance fixed by an interim maintenance decision shall be determined in accordance with Part I of Schedule 1.

(4)The Secretary of State may by regulations make provision as to default and interim maintenance decisions.

(5)The regulations may, in particular, make provision as to—

(a)the procedure to be followed in making a default or an interim maintenance decision; and

(b)a default rate of child support maintenance to apply where a default maintenance decision is made.]

Child support officersE+W+S

F3713 Child support officers.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

InformationE+W+S

14 Information required by Secretary of State.E+W+S

(1)The Secretary of State may make regulations requiring any information or evidence needed for the determination of any application [F38made or treated as made] under this Act, or any question arising in connection with such an application [F39(or application treated as made), or needed for the making of any decision or in connection with the imposition of any condition or requirement under this Act,] or needed in connection with the collection or enforcement of child support or other maintenance under this Act, to be furnished—

(a)by such persons as may be determined in accordance with regulations made by the Secretary of State; and

(b)in accordance with the regulations.

[F40(1A)Regulations under subsection (1) may make provision for notifying any person who is required to furnish any information or evidence under the regulations of the possible consequences of failing to do so.]

F41(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F41(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The Secretary of State may by regulations make provision authorising the disclosure by him F42... , in such circumstances as may be prescribed, of such information held by [F43him] for purposes of this Act as may be prescribed.

(4)The provisions of Schedule 2 (which relate to information which is held for purposes other than those of this Act but which is required by the Secretary of State) shall have effect.

[F4414A Information—offences.E+W+S

(1)This section applies to—

(a)persons who are required to comply with regulations under section 4(4) or 7(5); and

(b)persons specified in regulations under section 14(1)(a).

(2)Such a person is guilty of an offence if, pursuant to a request for information under or by virtue of those regulations—

(a)he makes a statement or representation which he knows to be false; or

(b)he provides, or knowingly causes or knowingly allows to be provided, a document or other information which he knows to be false in a material particular.

(3)Such a person is guilty of an offence if, following such a request, he fails to comply with it.

(4)It is a defence for a person charged with an offence under subsection (3) to prove that he had a reasonable excuse for failing to comply.

(5)A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.]

15 Powers of inspectors.E+W+S

[F45(1)The Secretary of State may appoint, on such terms as he thinks fit, persons to act as inspectors under this section.

(2)The function of inspectors is to acquire information which the Secretary of State needs for any of the purposes of this Act.

(3)Every inspector is to be given a certificate of his appointment.

(4)An inspector has power, at any reasonable time and either alone or accompanied by such other persons as he thinks fit, to enter any premises which—

(a)are liable to inspection under this section; and

(b)are premises to which it is reasonable for him to require entry in order that he may exercise his functions under this section,

and may there make such examination and inquiry as he considers appropriate.

(4A)Premises liable to inspection under this section are those which are not used wholly as a dwelling house and which the inspector has reasonable grounds for suspecting are—

(a)premises at which a non-resident parent is or has been employed;

(b)premises at which a non-resident parent carries out, or has carried out, a trade, profession, vocation or business;

(c)premises at which there is information held by a person (“A”) whom the inspector has reasonable grounds for suspecting has information about a non-resident parent acquired in the course of A’s own trade, profession, vocation or business.]

(5)An inspector exercising his powers may question any person aged 18 or over whom he finds on the premises.

(6)If required to do so by an inspector exercising his powers, [F46any such person] shall furnish to the inspector all such information and documents as the inspector may reasonably require.

(7)No person shall be required under this section to answer any question or to give any evidence tending to incriminate himself or, in the case of a person who is married [F47or is a civil partner], his or her spouse [F48or civil partner].

(8)On applying for admission to any premises in the exercise of his powers, an inspector shall, if so required, produce his certificate.

(9)If any person—

(a)intentionally delays or obstructs any inspector exercising his powers; or

(b)without reasonable excuse, refuses or neglects to answer any question or furnish any information or to produce any document when required to do so under this section,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(10)In this section—

• “certificate” means a certificate of appointment issued under this section;

• “inspector” means an inspector appointed under this section;

• “powers” means powers conferred by this section; F49...

• F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F50(11)In this section, “premises” includes—

(a)moveable structures and vehicles, vessels, aircraft and hovercraft;

(b)installations that are offshore installations for the purposes of the Mineral Workings (Offshore Installations) Act 1971; and

(c)places of all other descriptions whether or not occupied as land or otherwise,

and references in this section to the occupier of premises are to be construed, in relation to premises that are not occupied as land, as references to any person for the time being present at the place in question.]

Reviews and appealsU.K.

[F5116Revision of decisionsE+W+S

(1)Any decision [F52to which subsection (1A) applies] may be revised by the Secretary of State—

(a)either within the prescribed period or in prescribed cases or circumstances; and

(b)either on an application made for the purpose or on his own initiative;

and regulations may prescribe the procedure by which a decision of the Secretary of State may be so revised.

[F53(1A)This subsection applies to—

(a)a decision of the Secretary of State under section 11, 12 or 17;

(b)a reduced benefit decision under section 46;

(c)a decision of an appeal tribunal on a referral under section 28D(1)(b).

(1B)Where the Secretary of State revises a decision under section 12(1)—

(a)he may (if appropriate) do so as if he were revising a decision under section 11; and

(b)if he does that, his decision as revised is to be treated as one under section 11 instead of section 12(1) (and, in particular, is to be so treated for the purposes of an appeal against it under section 20).]

(2)In making a decision under subsection (1), the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.

(3)Subject to subsections (4) and (5) and section 28ZC, a revision under this section shall take effect as from the date on which the original decision took (or was to take) effect.

(4)Regulations may provide that, in prescribed cases or circumstances, a revision under this section shall take effect as from such other date as may be prescribed.

(5)Where a decision is revised under this section, for the purpose of any rule as to the time allowed for bringing an appeal, the decision shall be regarded as made on the date on which it is so revised.

(6)Except in prescribed circumstances, an appeal against a decision of the Secretary of State shall lapse if the decision is revised under this section before the appeal is determined.]

[F5417Decisions superseding earlier decisionsE+W+S

(1)Subject to subsection (2), the following, namely—

(a)any decision of the Secretary of State under section 11 or 12 or this section, whether as originally made or as revised under section 16;

(b)any decision of an appeal tribunal under section 20; F55...

[F56(c)any reduced benefit decision under section 46;

(d)any decision of an appeal tribunal on a referral under section 28D(1)(b);

(e)any decision of a Child Support Commissioner on an appeal from such a decision as is mentioned in paragraph (b) or (d)],

may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.

(2)In making a decision under subsection (1), the Secretary of State need not consider any issue that is not raised by the application or, as the case may be, did not cause him to act on his own initiative.

(3)Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.

[F57(4)Subject to subsection (5) and section 28ZC, a decision under this section shall take effect as from the beginning of the maintenance period in which it is made or, where applicable, the beginning of the maintenance period in which the application was made.

(4A)In subsection (4), a “maintenance period” is (except where a different meaning is prescribed for prescribed cases) a period of seven days, the first one beginning on the effective date of the first decision made by the Secretary of State under section 11 or (if earlier) his first default or interim maintenance decision (under section 12) in relation to the non-resident parent in question, and each subsequent one beginning on the day after the last day of the previous one.]

(5)Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed.]

F5418 Reviews of decisions of child support officers.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5419 Reviews at instigation of child support officers.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F5820 Appeals to appeal tribunals.E+W+S

(1)A qualifying person has a right of appeal to an appeal tribunal against—

(a)a decision of the Secretary of State under section 11, 12 or 17 (whether as originally made or as revised under section 16);

(b)a decision of the Secretary of State not to make a maintenance calculation under section 11 or not to supersede a decision under section 17;

(c)a reduced benefit decision under section 46;

(d)the imposition (by virtue of section 41A) of a requirement to make penalty payments, or their amount;

(e)the imposition (by virtue of section 47) of a requirement to pay fees.

(2)In subsection (1), “qualifying person” means—

(a)in relation to paragraphs (a) and (b)—

(i)the person with care, or non-resident parent, with respect to whom the Secretary of State made the decision, or

(ii)in a case relating to a maintenance calculation which was applied for under section 7, either of those persons or the child concerned;

(b)in relation to paragraph (c), the person in respect of whom the benefits are payable;

(c)in relation to paragraph (d), the parent who has been required to make penalty payments; and

(d)in relation to paragraph (e), the person required to pay fees.

(3)A person with a right of appeal under this section shall be given such notice as may be prescribed of—

(a)that right; and

(b)the relevant decision, or the imposition of the requirement.

(4)Regulations may make—

(a)provision as to the manner in which, and the time within which, appeals are to be brought; and

(b)such provision with respect to proceedings before appeal tribunals as the Secretary of State considers appropriate.

(5)The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.

(6)No appeal lies by virtue of subsection (1)(c) unless the amount of the person’s benefit is reduced in accordance with the reduced benefit decision; and the time within which such an appeal may be brought runs from the date of notification of the reduction.

(7)In deciding an appeal under this section, an appeal tribunal—

(a)need not consider any issue that is not raised by the appeal; and

(b)shall not take into account any circumstances not obtaining at the time when the Secretary of State made the decision or imposed the requirement.

(8)If an appeal under this section is allowed, the appeal tribunal may—

(a)itself make such decision as it considers appropriate; or

(b)remit the case to the Secretary of State, together with such directions (if any) as it considers appropriate.]

F5920A Lapse of appeals.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5921 Child support appeal tribunals.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 Child Support Commissioners.E+W+S

(1)Her Majesty may from time to time appoint a Chief Child Support Commissioner and such number of other Child Support Commissioners as she may think fit.

(2)The Chief Child Support Commissioner and the other Child Support Commissioners shall be appointed from among persons who—

(a)have a 10 year general qualification; or

(b)are advocates or solicitors in Scotland of 10 years’ standing.

(3)The Lord Chancellor, after consulting the Lord Advocate, may make such regulations with respect to proceedings before Child Support Commissioners as he considers appropriate.

(4)The regulations—

(a)may, in particular, make any provision of a kind mentioned in [F60Schedule 5 to the Social Security Act 1998]; and

(b)shall provide that any hearing before a Child Support Commissioner shall be in public except in so far as the Commissioner for special reasons directs otherwise.

(5)Schedule 4 shall have effect with respect to Child Support Commissioners.

23 Child Support Commissioners for Northern Ireland.U.K.

(1)Her Majesty may from time to time appoint a Chief Child Support Commissioner for Northern Ireland and such number of other Child Support Commissioners for Northern Ireland as she may think fit.

(2)The Chief Child Support Commissioner for Northern Ireland and the other Child Support Commissioners for Northern Ireland shall be appointed from among persons who are barristers or solicitors of not less than 10 years’ standing.

(3)Schedule 4 shall have effect with respect to Child Support Commissioners for Northern Ireland, subject to the modifications set out in paragraph 8.

F61(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F61(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F6223A Redetermination of appeals.E+W+S

(1)This section applies where an application is made to a person under section 24(6)(a) for leave to appeal from a decision of an appeal tribunal.

(2)If the person who constituted, or was the chairman of, the appeal tribunal considers that the decision was erroneous in law, he may set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal.

(3)If each of the principal parties to the case expresses the view that the decision was erroneous in point of law, the person shall set aside the decision and refer the case for determination by a differently constituted tribunal.

(4)The “principal parties” are—

(a)the Secretary of State; and

(b)those who are qualifying persons for the purposes of section 20(2) in relation to the decision in question.]

24 Appeal to Child Support Commissioner.E+W+S

(1)Any person who is aggrieved by a decision of [F63an appeal tribunal, and the Secretary of State], may appeal to a Child Support Commissioner on a question of law.

F64(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Where, on an appeal under this section, a Child Support Commissioner holds that the decision appealed against was wrong in law he shall set it aside.

(3)Where a decision is set aside under subsection (2), the Child Support Commissioner may—

(a)if he can do so without making fresh or further findings of fact, give the decision which he considers should have been given by [F65the appeal tribunal];

(b)if he considers it expedient, make such findings and give such decision as he considers appropriate in the light of those findings; or

[F66(c)on an appeal by the Secretary of State, refer the case to [F67an appeal tribunal] with directions for its determination; or

(d)on any other appeal, refer the case to [F68the Secretary of State] or, if he considers it appropriate, to [F67an appeal tribunal] with directions for its determination.]

[F69(4)The reference under subsection (3) to the Secretary of State shall, subject to any direction of the Child Support Commissioner, be to an officer of his, or a person providing him with services, who has taken no part in the decision originally appealed against.]

(5)On a reference under subsection (3) to [F70an appeal tribunal], the tribunal shall, subject to any direction of the Child Support Commissioner, consist of persons who were not members of the tribunal which gave the decision which has been appealed against.

(6)No appeal lies under this section without the leave—

(a)of the person [F71who constituted, or was the chairman of, the appeal tribunal] when the decision appealed against was given or of [F72such other person] as may be determined in accordance with regulations made by the Lord Chancellor; or

(b)subject to and in accordance with regulations so made, of a Child Support Commissioner.

(7)The Lord Chancellor may by regulations make provision as to the manner in which, and the time within which, appeals under this section are to be brought and applications for leave under this section are to be made.

(8)Where a question which would otherwise fall to be determined by [F73the Secretary of State] first arises in the course of an appeal to a Child Support Commissioner, he may, if he thinks fit, determine it even though it has not been considered by [F73the Secretary of State].

(9)Before making any regulations under subsection (6) or (7), the Lord Chancellor shall consult the Lord Advocate.

25 Appeal from Child Support Commissioner on question of law.E+W+S

(1)An appeal on a question of law shall lie to the appropriate court from any decision of a Child Support Commissioner.

(2)No such appeal may be brought except—

(a)with leave of the Child Support Commissioner who gave the decision or, where regulations made by the Lord Chancellor so provide, of a Child Support Commissioner selected in accordance with the regulations; or

(b)if the Child Support Commissioner refuses leave, with the leave of the appropriate court.

(3)An application for leave to appeal under this section against a decision of a Child Support Commissioner (“the appeal decision”) may only be made by—

(a)a person who was a party to the proceedings in which the original decision, or appeal decision, was given;

(b)the Secretary of State; or

(c)any other person who is authorised to do so by regulations made by the Lord Chancellor.

[F74(3A)The Child Support Commissioner to whom an application for leave to appeal under this section is made shall specify as the appropriate court either the Court of Appeal or the Court of Session.

(3B)In determining the appropriate court, the Child Support Commissioner shall have regard to the circumstances of the case, and in particular the convenience of the persons who may be parties to the appeal.]

(4)In this section—

• “appropriate court”[F75, except in subsections (3A) and (3B), means the court specified in accordance with those subsections]; and

• “original decision” means the decision to which the appeal decision in question relates.

(5)The Lord Chancellor may by regulations make provision with respect to—

(a)the manner in which and the time within which applications must be made to a Child Support Commissioner for leave under this section; and

(b)the procedure for dealing with such applications.

(6)Before making any regulations under subsection (2), (3) or (5), the Lord Chancellor shall consult the Lord Advocate.

26 Disputes about parentage.E+W+S

(1)Where a person who is alleged to be a parent of the child with respect to whom an application for a [F3maintenance calculation] has been made [F76or treated as made] (“the alleged parent”) denies that he is one of the child’s parents, [F77the Secretary of State] shall not make a [F3maintenance calculation] on the assumption that the alleged parent is one of the child’s parents unless the case falls within one of those set out in subsection (2).

(2)The Cases are —

• [F78Case A1

  Where—

  (a)

  the child is habitually resident in England and Wales;

  (b)

  the Secretary of State is satisfied that the alleged parent was married to the child’s mother at some time in the period beginning with the conception and ending with the birth of the child; and

  (c)

  the child has not been adopted.

• Case A2

  Where—

  (a)

  the child is habitually resident in England and Wales;

  (b)

  the alleged parent has been registered as father of the child under section 10 or 10A of the Births and Deaths Registration Act 1953, or in any register kept under section 13 (register of births and still-births) or section 44 (Register of Corrections Etc) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965, or under Article 14 or 18(1)(b)(ii) of the Births and Deaths Registration (Northern Ireland) Order 1976; and

  (c)

  the child has not subsequently been adopted.

• Case A3

  Where the result of a scientific test (within the meaning of section 27A) taken by the alleged parent would be relevant to determining the child’s parentage, and the alleged parent—

  (a)

  refuses to take such a test; or

  (b)

  has submitted to such a test, and it shows that there is no reasonable doubt that the alleged parent is a parent of the child.]

• Case A

  Where the alleged parent is a parent of the child in question by virtue of having adopted him.

• Case B

  Where the alleged parent is a parent of the child in question by virtue of an order under section 30 of the M8Human Fertilisation and Embryology Act 1990 (parental orders in favour of gamete donors).

• [F79Case B1

  Where the Secretary of State is satisfied that the alleged parent is a parent of the child in question by virtue of section 27 or 28 of that Act (meaning of “mother” and of “father” respectively).]

• Case C

  Where—

  (a)

  either—

  (i)

  a declaration that the alleged parent is a parent of the child in question (or a declaration which has that effect) is in force under section [F8055A or] 56 of the M9Family Law Act 1986 [F81or Article 32 of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989] (declarations of parentage); or

  (ii)

  a declarator by a court in Scotland that the alleged parent is a parent of the child in question (or a declarator which has that effect) is in force; and

  (b)

  the child has not subsequently been adopted.

• Case D

  F82. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• Case E

  Where—

  (a)

  the child is habitually resident in Scotland;

  (b)

  [F83the Secretary of State] is satisfied that one or other of the presumptions set out in section 5(1) of the M10Law Reform (Parent and Child) (Scotland) Act 1986 applies; and

  (c)

  the child has not subsequently been adopted.

• Case F

  Where—

  (a)

  the alleged parent has been found, or adjudged, to be the father of the child in question—

  (i)

  in proceedings before any court in England and Wales which are relevant proceedings for the purposes of section 12 of the M11Civil Evidence Act 1968 [F84or in proceedings before any court in Northern Ireland which are relevant proceedings for the purposes of section 8 of the Civil Evidence Act (Northern Ireland) 1971]; or

  (ii)

  in affiliation proceedings before any court in the United Kingdom,

  (whether or not he offered any defence to the allegation of paternity) and that finding or adjudication still subsists; and

  (b)

  the child has not subsequently been adopted.

(3)In this section—

• “adopted” means adopted within the meaning of Part IV of the M12Adoption Act 1976 [F85or Chapter 4 of Part 1 of the Adoption and Children Act 2002] or, in relation to Scotland, Part IV of the M13Adoption (Scotland) Act 1978; and

• “affiliation proceedings”, in relation to Scotland, means any action of affiliation and aliment.

[F8627 Applications for declaration of parentage under Family Law Act 1986.E+W

(1)This section applies where—

(a)an application for a maintenance calculation has been made (or is treated as having been made), or a maintenance calculation is in force, with respect to a person (“the alleged parent”) who denies that he is a parent of a child with respect to whom the application or calculation was made or treated as made;

(b)the Secretary of State is not satisfied that the case falls within one of those set out in section 26(2); and

(c)the Secretary of State or the person with care makes an application for a declaration under section 55A of the Family Law Act 1986 as to whether or not the alleged parent is one of the child’s parents.

(2)Where this section applies—

(a)if it is the person with care who makes the application, she shall be treated as having a sufficient personal interest for the purposes of subsection (3) of that section; and

(b)if it is the Secretary of State who makes the application, that subsection shall not apply.

(3)This section does not apply to Scotland.]

[F8727A Recovery of fees for scientific tests.U.K.

(1)This section applies in any case where—

(a)an application for a [F3maintenance calculation] has been made [F88or treated as made] or a [F3maintenance calculation] is in force;

(b)scientific tests have been carried out (otherwise than under a direction or in response to a request) in relation to bodily samples obtained from a person who is alleged to be a parent of a child with respect to whom the application or [F1calculation] is made [F89or, as the case may be, treated as made];

(c)the results of the tests do not exclude the alleged parent from being one of the child’s parents; and

(d)one of the conditions set out in subsection (2) is satisfied.

(2)The conditions are that—

(a)the alleged parent does not deny that he is one of the child’s parents;

(b)in proceedings under [F90section 55A of the Family Law Act 1986], a court has made a declaration that the alleged parent is a parent of the child in question; or

(c)in an action under section 7 of the Law Reform (Parent and Child) (Scotland) Act 1986, brought by the Secretary of State by virtue of section 28, a court has granted a decree of declarator of parentage to the effect that the alleged parent is a parent of the child in question.

(3)In any case to which this section applies, any fee paid by the Secretary of State in connection with scientific tests may be recovered by him from the alleged parent as a debt due to the Crown.

(4)In this section—

• “bodily sample” means a sample of bodily fluid or bodily tissue taken for the purpose of scientific tests;

• “direction” means a direction given by a court under section 20 of the Family Law Reform Act 1969 (tests to determine paternity);

• “request” means a request made by a court under section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (blood and other samples in civil proceedings); and

• “scientific tests” means scientific tests made with the object of ascertaining the inheritable characteristics of bodily fluids or bodily tissue.

(5)Any sum recovered by the Secretary of State under this section shall be paid by him into the Consolidated Fund.]

28 Power of Secretary of State to initiate or defend actions of declarator: Scotland.S

[F91(1)Subsection (1A) applies in any case where—

(a)an application for a [F3maintenance calculation] has been made [F92or treated as made], or a [F3maintenance calculation] is in force, with respect to a person (“the alleged parent”) who denies that he is a parent of a child with respect to whom the application [F93was made or treated as made or the calculation was made]; and

(b)[F94the Secretary of State] is not satisfied that the case falls within one of those set out in section 26(2).

(1A)In any case where this subsection applies, the Secretary of State may bring an action for declarator of parentage under section 7 of the Law Reform (Parent and Child) (Scotland) Act 1986.]

(2)The Secretary of State may defend an action for declarator of non-parentage or illegitimacy brought by a person named as the alleged parent in an application for a [F3maintenance calculation] [F95or in a [F3maintenance calculation] which is in force].

(3)This section applies to Scotland only.

[F96Decisions and appeals dependent on other casesU.K.

28ZADecisions involving issues that arise on appeal in other casesU.K.

(1)This section applies where—

(a)a decision by the Secretary of State falls to be made under section 11, 12, 16 or 17 [F97or with respect to a reduced benefit decision under section 46]; and

[F98(b)an appeal is pending against a decision given in relation to a different matter by a Child Support Commissioner or a court.]

(2)If the Secretary of State considers it possible that the result of the appeal will be such that, if it were already determined, it would affect the decision in some way—

(a)he need not, except in such cases or circumstances as may be prescribed, make the decision while the appeal is pending;

(b)he may, in such cases or circumstances as may be prescribed, make the decision on such basis as may be prescribed.

(3)Where the Secretary of State acts in accordance with subsection (2)(b), following the determination of the appeal he shall if appropriate revise his decision (under section 16) in accordance with that determination.

(4)For the purposes of this section, an appeal against a decision is pending if—

(a)an appeal against the decision has been brought but not determined;

(b)an application for leave to appeal against the decision has been made but not determined; or

(c)in such circumstances as may be prescribed, an appeal against the decision has not been brought (or, as the case may be, an application for leave to appeal against the decision has not been made) but the time for doing so has not yet expired.

(5)In paragraphs (a), (b) and (c) of subsection (4), any reference to an appeal, or an application for leave to appeal, against a decision includes a reference to—

(a)an application for, or for leave to apply for, judicial review of the decision under section 31 of the Supreme Court Act 1981; or

(b)an application to the supervisory jurisdiction of the Court of Session in respect of the decision.

28ZBAppeals involving issues that arise on appeal in other casesU.K.

(1)This section applies where—

[F99(a)an appeal (“appeal A”) in relation to a decision or the imposition of a requirement falling within section 20(1) is made to an appeal tribunal, or from an appeal tribunal to a Child Support Commissioner;] and

(b)an appeal (“appeal B”) is pending against a decision given in a different case by a Child Support Commissioner or a court.

(2)If the Secretary of State considers it possible that the result of appeal B will be such that, if it were already determined, it would affect the determination of appeal A, he may serve notice requiring the tribunal or Child Support Commissioner—

(a)not to determine appeal A but to refer it to him; or

(b)to deal with the appeal in accordance with subsection (4).

(3)Where appeal A is referred to the Secretary of State under subsection (2)(a), following the determination of appeal B and in accordance with that determination, he shall if appropriate—

(a)in a case where appeal A has not been determined by the tribunal, revise (under section 16) his decision which gave rise to that appeal; or

(b)in a case where appeal A has been determined by the tribunal, make a decision (under section 17) superseding the tribunal’s decision.

(4)Where appeal A is to be dealt with in accordance with this subsection, the appeal tribunal or Child Support Commissioner shall either—

(a)stay appeal A until appeal B is determined; or

(b)if the tribunal or Child Support Commissioner considers it to be in the interests of the appellant to do so, determine appeal A as if—

(i)appeal B had already been determined; and

(ii)the issues arising on appeal B had been decided in the way that was most unfavourable to the appellant.

In this subsection “the appellant” means the person who appealed or, as the case may be, first appealed against the decision [F100or the imposition of the requirement] mentioned in subsection (1)(a).

(5)Where the appeal tribunal or Child Support Commissioner acts in accordance with subsection (4)(b), following the determination of appeal B the Secretary of State shall, if appropriate, make a decision (under section 17) superseding the decision of the tribunal or Child Support Commissioner in accordance with that determination.

(6)For the purposes of this section, an appeal against a decision is pending if—

(a)an appeal against the decision has been brought but not determined;

(b)an application for leave to appeal against the decision has been made but not determined; or

(c)in such circumstances as may be prescribed, an appeal against the decision has not been brought (or, as the case may be, an application for leave to appeal against the decision has not been made) but the time for doing so has not yet expired.

(7)In this section—

(a)the reference in subsection (1)(a) to an appeal to a Child Support Commissioner includes a reference to an application for leave to appeal to a Child Support Commissioner; and

(b)any reference in paragraph (a), (b) or (c) of subsection (6) to an appeal, or to an application for leave to appeal, against a decision includes a reference to—

(i)an application for, or for leave to apply for, judicial review of the decision under section 31 of the Supreme Court Act 1981; or

(ii)an application to the supervisory jurisdiction of the Court of Session in respect of the decision.

(8)Regulations may make provision supplementing that made by this section.]

[F101Cases of errorU.K.

28ZCRestrictions on liability in certain cases of errorU.K.

(1)Subject to subsection (2), this section applies where—

(a)the effect of the determination, whenever made, of an appeal to a Child Support Commissioner or the court (“the relevant determination”) is that the adjudicating authority’s decision out of which the appeal arose was erroneous in point of law; and

(b)after the date of the relevant determination a decision falls to be made by the Secretary of State in accordance with that determination (or would, apart from this section, fall to be so made)—

(i)with respect to an application for a [F3maintenance calculation] (made after the commencement date) [F102or one treated as having been so made, or under section 46 as to the reduction of benefit];

(ii)as to whether to revise, under section 16, [F103any decision (made after the commencement date) referred to in section 16(1A)]; or

(iii)on an application under section 17 (made after the commencement date) for [F104any decision (made after the commencement date) referred to in section 17(1)].

(2)This section does not apply where the decision of the Secretary of State mentioned in subsection (1)(b)—

(a)is one which, but for section 28ZA(2)(a), would have been made before the date of the relevant determination; or

(b)is one made in pursuance of section 28ZB(3) or (5).

(3)In so far as the decision relates to a person’s liability [F105or the reduction of a person’s benefit] in respect of a period before the date of the relevant determination, it shall be made as if the adjudicating authority’s decision had been found by the Commissioner or court not to have been erroneous in point of law.

(4)Subsection (1)(a) shall be read as including a case where—

(a)the effect of the relevant determination is that part or all of a purported regulation or order is invalid; and

(b)the error of law made by the adjudicating authority was to act on the basis that the purported regulation or order (or the part held to be invalid) was valid.

(5)It is immaterial for the purposes of subsection (1)—

(a)where such a decision as is mentioned in paragraph (b)(i) falls to be made; or

(b)where such a decision as is mentioned in paragraph (b)(ii) or (iii) falls to be made on an application under section 16 or (as the case may be) section 17,

whether the application was made before or after the date of the relevant determination.

(6)In this section—

• “adjudicating authority” means the Secretary of State, or a child support officer [F106or, in the case of a decision made on a referral under section 28D(1)(b), an appeal tribunal];

• “the commencement date” means the date of the coming into force of section 44 of the Social Security Act 1998; and

• “the court” means the High Court, the Court of Appeal, the Court of Session, the High Court or Court of Appeal in Northern Ireland, the House of Lords or the Court of Justice of the European Community.

(7)The date of the relevant determination shall, in prescribed cases, be determined for the purposes of this section in accordance with any regulations made for that purpose.

(8)Regulations made under subsection (7) may include provision—

(a)for a determination of a higher court to be treated as if it had been made on the date of a determination of a lower court or a Child Support Commissioner; or

(b)for a determination of a lower court or a Child Support Commissioner to be treated as if it had been made on the date of a determination of a higher court.

28ZDCorrection of errors and setting aside of decisionsU.K.

(1)Regulations may make provision with respect to—

(a)the correction of accidental errors in any decision or record of a decision given under this Act; and

(b)the setting aside of any such decision in a case where it appears just to set the decision aside on the ground that—

(i)a document relating to the proceedings in which the decision was given was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative or was not received at an appropriate time by the body or person who gave the decision; or

(ii)a party to the proceedings or a party’s representative was not present at a hearing related to the proceedings.

(2)Nothing in subsection (1) shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from regulations made by virtue of that subsection.]

[F107VariationsU.K.

28A Application for variation of usual rules for calculating maintenance.U.K.

(1)Where an application for a maintenance calculation is made under section 4 or 7, or treated as made under section 6, the person with care or the non-resident parent or (in the case of an application under section 7) either of them or the child concerned may apply to the Secretary of State for the rules by which the calculation is made to be varied in accordance with this Act.

(2)Such an application is referred to in this Act as an “application for a variation”.

(3)An application for a variation may be made at any time before the Secretary of State has reached a decision (under section 11 or 12(1)) on the application for a maintenance calculation (or the application treated as having been made under section 6).

(4)A person who applies for a variation—

(a)need not make the application in writing unless the Secretary of State directs in any case that he must; and

(b)must say upon what grounds the application is made.

(5)In other respects an application for a variation is to be made in such manner as may be prescribed.

(6)Schedule 4A has effect in relation to applications for a variation.]

[F10728B Preliminary consideration of applications.U.K.

(1)Where an application for a variation has been duly made to the Secretary of State, he may give it a preliminary consideration.

(2)Where he does so he may, on completing the preliminary consideration, reject the application (and proceed to make his decision on the application for a maintenance calculation without any variation) if it appears to him—

(a)that there are no grounds on which he could agree to a variation;

(b)that he has insufficient information to make a decision on the application for the maintenance calculation under section 11 (apart from any information needed in relation to the application for a variation), and therefore that his decision would be made under section 12(1); or

(c)that other prescribed circumstances apply.]

[F10728C Imposition of regular payments condition.U.K.

(1)Where—

(a)an application for a variation is made by the non-resident parent; and

(b)the Secretary of State makes an interim maintenance decision,

the Secretary of State may also, if he has completed his preliminary consideration (under section 28B) of the application for a variation and has not rejected it under that section, impose on the non-resident parent one of the conditions mentioned in subsection (2) (a “regular payments condition”).

(2)The conditions are that—

(a)the non-resident parent must make the payments of child support maintenance specified in the interim maintenance decision;

(b)the non-resident parent must make such lesser payments of child support maintenance as may be determined in accordance with regulations made by the Secretary of State.

(3)Where the Secretary of State imposes a regular payments condition, he shall give written notice of the imposition of the condition and of the effect of failure to comply with it to—

(a)the non-resident parent;

(b)all the persons with care concerned; and

(c)if the application for the maintenance calculation was made under section 7, the child who made the application.

(4)A regular payments condition shall cease to have effect—

(a)when the Secretary of State has made a decision on the application for a maintenance calculation under section 11 (whether he agrees to a variation or not);

(b)on the withdrawal of the application for a variation.

(5)Where a non-resident parent has failed to comply with a regular payments condition, the Secretary of State may in prescribed circumstances refuse to consider the application for a variation, and instead reach his decision under section 11 as if no such application had been made.

(6)The question whether a non-resident parent has failed to comply with a regular payments condition is to be determined by the Secretary of State.

(7)Where the Secretary of State determines that a non-resident parent has failed to comply with a regular payments condition he shall give written notice of his determination to—

(a)that parent;

(b)all the persons with care concerned; and

(c)if the application for the maintenance calculation was made under section 7, the child who made the application.]

[F10828D Determination of applications.U.K.

[F109(1)Where an application for a variation has not failed, the Secretary of State shall, in accordance with the relevant provisions of, or made under, this Act—

(a)either agree or not to a variation, and make a decision under section 11 or 12(1); or

(b)refer the application to an appeal tribunal for the tribunal to determine what variation, if any, is to be made.]

(2)For the purposes of subsection (1), [F110an application for a variation] has failed if—

(a)it has F111... been withdrawn; or

(b)the Secretary of State has rejected it on completing a preliminary consideration under section 28B; [F112or]

[F112(c)the Secretary of State has refused to consider it under section 28C(5).]

(3)In dealing with [F110an application for a variation] which has been referred to it under subsection (1)(b), [F113an appeal tribunal] shall have the same powers, and be subject to the same duties, as would the Secretary of State if he were dealing with the application.]

[F11428E Matters to be taken into account.U.K.

(1)In determining [F115whether to agree to a variation], the Secretary of State shall have regard both to the general principles set out in subsection (2) and to such other considerations as may be prescribed.

(2)The general principles are that—

(a)parents should be responsible for maintaining their children whenever they can afford to do so;

(b)where a parent has more than one child, his obligation to maintain any one of them should be no less of an obligation than his obligation to maintain any other of them.

(3)In determining [F115whether to agree to a variation], the Secretary of State shall take into account any representations made to him—

(a)by the person with care or [F2non-resident parent] concerned; or

(b)where the application for the current [F1calculation] was made under section 7, by either of them or the child concerned.

(4)In determining [F115whether to agree to a variation], no account shall be taken of the fact that—

(a)any part of the income of the person with care concerned is, or would be if [F116the Secretary of State agreed to a variation], derived from any benefit; or

(b)some or all of any child support maintenance might be taken into account in any manner in relation to any entitlement to benefit.

(5)In this section “benefit” has such meaning as may be prescribed.]

[F11728F Agreement to a variation.U.K.

(1)The Secretary of State may agree to a variation if—

(a)he is satisfied that the case is one which falls within one or more of the cases set out in Part I of Schedule 4B or in regulations made under that Part; and

(b)it is his opinion that, in all the circumstances of the case, it would be just and equitable to agree to a variation.

(2)In considering whether it would be just and equitable in any case to agree to a variation, the Secretary of State—

(a)must have regard, in particular, to the welfare of any child likely to be affected if he did agree to a variation; and

(b)must, or as the case may be must not, take any prescribed factors into account, or must take them into account (or not) in prescribed circumstances.

(3)The Secretary of State shall not agree to a variation (and shall proceed to make his decision on the application for a maintenance calculation without any variation) if he is satisfied that—

(a)he has insufficient information to make a decision on the application for the maintenance calculation under section 11, and therefore that his decision would be made under section 12(1); or

(b)other prescribed circumstances apply.

(4)Where the Secretary of State agrees to a variation, he shall—

(a)determine the basis on which the amount of child support maintenance is to be calculated in response to the application for a maintenance calculation (including an application treated as having been made); and

(b)make a decision under section 11 on that basis.

(5)If the Secretary of State has made an interim maintenance decision, it is to be treated as having been replaced by his decision under section 11, and except in prescribed circumstances any appeal connected with it (under section 20) shall lapse.

(6)In determining whether or not to agree to a variation, the Secretary of State shall comply with regulations made under Part II of Schedule 4B.]

[F11828G Variations: revision and supersession.U.K.

(1)An application for a variation may also be made when a maintenance calculation is in force.

(2)The Secretary of State may by regulations provide for—

(a)sections 16, 17 and 20; and

(b)sections 28A to 28F and Schedules 4A and 4B,

to apply with prescribed modifications in relation to such applications.

(3)The Secretary of State may by regulations provide that, in prescribed cases (or except in prescribed cases), a decision under section 17 made otherwise than pursuant to an application for a variation may be made on the basis of a variation agreed to for the purposes of an earlier decision without a new application for a variation having to be made.]

F11928HDeparture directions: decisions and appealsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12028I Transitional provisions.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F121Voluntary paymentsU.K.

28J Voluntary payments.U.K.

(1)This section applies where—

(a)a person has applied for a maintenance calculation under section 4(1) or 7(1), or is treated as having applied for one by virtue of section 6;

(b)the Secretary of State has neither made a decision under section 11 or 12 on the application, nor decided not to make a maintenance calculation; and

(c)the non-resident parent makes a voluntary payment.

(2)A “voluntary payment” is a payment—

(a)on account of child support maintenance which the non-resident parent expects to become liable to pay following the determination of the application (whether or not the amount of the payment is based on any estimate of his potential liability which the Secretary of State has agreed to give); and

(b)made before the maintenance calculation has been notified to the non-resident parent or (as the case may be) before the Secretary of State has notified the non-resident parent that he has decided not to make a maintenance calculation.

(3)In such circumstances and to such extent as may be prescribed—

(a)the voluntary payment may be set off against arrears of child support maintenance which accrued by virtue of the maintenance calculation taking effect on a date earlier than that on which it was notified to the non-resident parent;

(b)the amount payable under a maintenance calculation may be adjusted to take account of the voluntary payment.

(4)A voluntary payment shall be made to the Secretary of State unless he agrees, on such conditions as he may specify, that it may be made to the person with care, or to or through another person.

(5)The Secretary of State may by regulations make provision as to voluntary payments, and the regulations may in particular—

(a)prescribe what payments or descriptions of payment are, or are not, to count as “voluntary payments”;

(b)prescribe the extent to which and circumstances in which a payment, or a payment of a prescribed description, counts.]

Collection and enforcementE+W+S

29 Collection of child support maintenance.E+W+S

(1)The Secretary of State may arrange for the collection of any child support maintenance payable in accordance with a [F3maintenance calculation] where—

(a)the [F1calculation] is made by virtue of section 6; or

(b)an application has been made to the Secretary of State under section 4(2) or 7(3) for him to arrange for its collection.

(2)Where a [F3maintenance calculation] is made under this Act, payments of child support maintenance under the [F1calculation] shall be made in accordance with regulations made by the Secretary of State.

(3)The regulations may, in particular, make provision—

(a)for payments of child support maintenance to be made—

(i)to the person caring for the child or children in question;

(ii)to, or through, the Secretary of State; or

(iii)to, or through, such other person as the Secretary of State may, from time to time, specify;

(b)as to the method by which payments of child support maintenance are to be made;

(c)as to the intervals at which such payments are to be made;

(d)as to the method and timing of the transmission of payments which are made, to or through the Secretary of State or any other person, in accordance with the regulations;

(e)empowering the Secretary of State to direct any person liable to make payments in accordance with the [F1calculation]—

(i)to make them by standing order or by any other method which requires one person to give his authority for payments to be made from an account of his to an account of another’s on specific dates during the period for which the authority is in force and without the need for any further authority from him;

(ii)to open an account from which payments under the [F1calculation] may be made in accordance with the method of payment which that person is obliged to adopt;

(f)providing for the making of representations with respect to matters with which the regulations are concerned.

30 Collection and enforcement of other forms of maintenance.E+W+S

(1)Where the Secretary of State is arranging for the collection of any payments under section 29 or subsection (2), he may also arrange for the collection of any periodical payments, or secured periodical payments, of a prescribed kind which are payable to or for the benefit of any person who falls within a prescribed category.

[F122(2)The Secretary of State may, except in prescribed cases, arrange for the collection of any periodical payments, or secured periodical payments, of a prescribed kind which are payable for the benefit of a child even though he is not arranging for the collection of child support maintenance with respect to that child.]

(3)Where—

(a)the Secretary of State is arranging, under this Act, for the collection of different payments (“the payments”) from the same [F2non-resident parent];

(b)an amount is collected by the Secretary of State from the [F2non-resident parent] which is less than the total amount due in respect of the payments; and

(c)the [F2non-resident parent] has not stipulated how that amount is to be allocated by the Secretary of State as between the payments,

the Secretary of State may allocate that amount as he sees fit.

(4)In relation to England and Wales, the Secretary of State may by regulations make provision for sections 29 and 31 to 40 to apply, with such modifications (if any) as he considers necessary or expedient, for the purpose of enabling him to enforce any obligation to pay any amount which he is authorised to collect under this section.

(5)In relation to Scotland, the Secretary of State may by regulations make provision for the purpose of enabling him to enforce any obligation to pay any amount which he is authorised to collect under this section—

(a)empowering him to bring any proceedings or take any other steps (other than diligence against earnings) which could have been brought or taken by or on behalf of the person to whom the periodical payments are payable;

(b)applying sections 29, 31 and 32 with such modifications (if any) as he considers necessary or expedient.

31 Deduction from earnings orders.E+W+S

(1)This section applies where any person (“the liable person”) is liable to make payments of child support maintenance.

(2)The Secretary of State may make an order (“a deduction from earnings order”) against a liable person to secure the payment of any amount due under the [F3maintenance calculation] in question.

(3)A deduction from earnings order may be made so as to secure the payment of—

(a)arrears of child support maintenance payable under the [F1calculation];

(b)amounts of child support maintenance which will become due under the [F1calculation]; or

(c)both such arrears and such future amounts.

(4)A deduction from earnings order—

(a)shall be expressed to be directed at a person (“the employer”) who has the liable person in his employment; and

(b)shall have effect from such date as may be specified in the order.

(5)A deduction from earnings order shall operate as an instruction to the employer to—

(a)make deductions from the liable person’s earnings; and

(b)pay the amounts deducted to the Secretary of State.

(6)The Secretary of State shall serve a copy of any deduction from earnings order which he makes under this section on—

(a)the person who appears to the Secretary of State to have the liable person in question in his employment; and

(b)the liable person.

(7)Where—

(a)a deduction from earnings order has been made; and

(b)a copy of the order has been served on the liable person’s employer,

it shall be the duty of that employer to comply with the order; but he shall not be under any liability for non-compliance before the end of the period of 7 days beginning with the date on which the copy was served on him.

(8)In this section and in section 32 “earnings” has such meaning as may be prescribed.

32 Regulations about deduction from earnings orders.E+W+S

(1)The Secretary of State may by regulations make provision with respect to deduction from earnings orders.

(2)The regulations may, in particular, make provision—

(a)as to the circumstances in which one person is to be treated as employed by another;

(b)requiring any deduction from earnings under an order to be made in the prescribed manner;

[F123(bb)for the amount or amounts which are to be deducted from the liable person’s earnings not to exceed a prescribed proportion of his earnings (as determined by the employer);]

(c)requiring an order to specify the amount or amounts to which the order relates and the amount or amounts which are to be deducted from the liable person’s earnings in order to meet his liabilities under the [F3maintenance calculation] in question;

(d)requiring the intervals between deductions to be made under an order to be specified in the order;

(e)as to the payment of sums deducted under an order to the Secretary of State;

(f)allowing the person who deducts and pays any amount under an order to deduct from the liable person’s earnings a prescribed sum towards his administrative costs;

(g)with respect to the notification to be given to the liable person of amounts deducted, and amounts paid, under the order;

(h)requiring any person on whom a copy of an order is served to notify the Secretary of State in the prescribed manner and within a prescribed period if he does not have the liable person in his employment or if the liable person ceases to be in his employment;

(i)as to the operation of an order where the liable person is in the employment of the Crown;

(j)for the variation of orders;

(k)similar to that made by section 31(7), in relation to any variation of an order;

(l)for an order to lapse when the employer concerned ceases to have the liable person in his employment;

(m)as to the revival of an order in such circumstances as may be prescribed;

(n)allowing or requiring an order to be discharged;

(o)as to the giving of notice by the Secretary of State to the employer concerned that an order has lapsed or has ceased to have effect.

(3)The regulations may include provision that while a deduction from earnings order is in force—

(a)the liable person shall from time to time notify the Secretary of State, in the prescribed manner and within a prescribed period, of each occasion on which he leaves any employment or becomes employed, or re-employed, and shall include in such a notification a statement of his earnings and expected earnings from the employment concerned and of such other matters as may be prescribed;

(b)any person who becomes the liable person’s employer and knows that the order is in force shall notify the Secretary of State, in the prescribed manner and within a prescribed period, that he is the liable person’s employer, and shall include in such a notification a statement of the liable person’s earnings and expected earnings from the employment concerned and of such other matters as may be prescribed.

(4)The regulations may include provision with respect to the priority as between a deduction from earnings order and—

(a)any other deduction from earnings order;

(b)any order under any other enactment relating to England and Wales which provides for deductions from the liable person’s earnings;

(c)any diligence against earnings.

(5)The regulations may include a provision that a liable person may appeal to a magistrates’ court (or in Scotland to the sheriff) if he is aggrieved by the making of a deduction from earnings order against him, or by the terms of any such order, or there is a dispute as to whether payments constitute earnings or as to any other prescribed matter relating to the order.

(6)On an appeal under subsection (5) the court or (as the case may be) the sheriff shall not question the [F3maintenance calculation] by reference to which the deduction from earnings order was made.

(7)Regulations made by virtue of subsection (5) may include provision as to the powers of a magistrates’ court, or in Scotland of the sheriff, in relation to an appeal (which may include provision as to the quashing of a deduction from earnings order or the variation of the terms of such an order).

(8)If any person fails to comply with the requirements of a deduction from earnings order, or with any regulation under this section which is designated for the purposes of this subsection, he shall be guilty of an offence.

(9)In subsection (8) “designated” means designated by the regulations.

(10)It shall be a defence for a person charged with an offence under subsection (8) to prove that he took all reasonable steps to comply with the requirements in question.

(11)Any person guilty of an offence under subsection (8) shall be liable on summary conviction to a fine not exceeding level two on the standard scale.

33 Liability orders.E+W+S

(1)This section applies where—

(a)a person who is liable to make payments of child support maintenance (“the liable person”) fails to make one or more of those payments; and

(b)it appears to the Secretary of State that—

(i)it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or

(ii)although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the [F3maintenance calculation] in question.

(2)The Secretary of State may apply to a magistrates’ court or, in Scotland, to the sheriff for an order (“a liability order”) against the liable person.

(3)Where the Secretary of State applies for a liability order, the magistrates’ court or (as the case may be) sheriff shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.

(4)On an application under subsection (2), the court or (as the case may be) the sheriff shall not question the [F3maintenance calculation] under which the payments of child support maintenance fell to be made.