MNHQ here: free advice clinic with Gingerbread on the Child Maintenance Service

[BojanaMumsnet]

Mumsnet and single parent charity Gingerbread are teaming up to provide specialist advice on Child Maintenance. You may have already seen this week that Mumsnet, Gingerbread and the Good Law Project are supporting a legal action against the DWP about the Child Maintenance Service’s failure to collect payments.

Gingerbread’s helpline team will answer questions and advise on the options available to you via the Child Maintenance Service (CMS).

The clinic will take place on this thread in the form of a Q&A session from today, Friday 26 June. It will cover issues like:

• Information on entitlement to child maintenance
• Information and advice on different options for making child support arrangements
• Information on how to claim child support through the statutory Child Maintenance Service (CMS) and what to expect from the CMS
• Information on how child maintenance is calculated and what income and capital is taken into account.
• Information on how child maintenance affects benefits payments
• Advice on challenging an incorrect decision
• Advice on what you can do if the child maintenance is not being paid

About Gingerbread

The Gingerbread Helpline is a well established advice line for single parents with primary or shared care of children. We provide advice, information and signposting are on a broad range of issues affecting single parents including: welfare benefits; child maintenance; family law; and coronavirus related issues. However, the Helpline is unable to undertake casework or representations.

Important:

Gingerbread Advisers endeavour to provide accurate and up to date advice on Child Maintenance, however this advice is for general guidance on your rights and responsibilities only and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a specialist adviser or solicitor.

Support Gingerbread with the legal case:

Gingerbread are a small charity with limited resources, any contribution you can make to support the costs of supporting this case would be much appreciated. You can donate at gingerbread.charitycheckout.co.uk/cf/fixthecms

You can also help by raising awareness about the case via the following channels –

• Showing your support social media using #FixTheCMS hashtag
• Sharing our CMS content across the own networks to build momentum around the campaign
• Writing to your local MP to suggest they offer their support via our Do Gooder campaign which can be accessed via www.gingerbread.org.uk/FixtheCMS
• Follow @gingerbread on twitter - @gingerbreadcharity on Instagram, @Gingerbread on Facebook for all the latest updates on the campaign, help us to raise awareness throughout the campaign by sharing our tweets and social posts across your networks too.
• Pledge your support for the #FixTheCMS case here: www.gingerbread.org.uk/fixthecms-pledge/

For more information on how you can support, please visit www.gingerbread.org.uk/FixtheCMS

post edited to add another supporter link for the #FixtheCMS campaign

@shitwithsugaron

My ex has a child from a previous relationship and said the same to me. What actually happened was that the CMS worked out what he should pay and split it for two children. All that happened was that the other mother got less money. He pays her no problem but does not pay for my little boy. He has a DOE and changes jobs but pays her directly, even in them circumstances the CMS can't find him to enforce a court order.

The self employed thing gets in my nerves like nothing else. How do they get away with it?? I can't understand how someone hasn't closed the loophole for maintenance and dividends etc.

Hi,

Thanks for all the questions. We're going to close the clinic to new questions now as the helpline team are at capacity - answers will be posted on this thread when they are ready, by the end of next week at the latest.

Thanks
MNHQ

@Timeforsinging81

I have a question. My ex is long term unemployed, refuses to seek work and doesn't receive JSA as he doesn't have enough qualifying years of NI. He is currently living off his savings (30k approx) and is running a 'business' buying and selling junk on eBay/Gumtree. Is there any point in applying for CM? Or any way to get him to contribute towards his children? From his savings? There's no chance of coming to an agreement ourselves (non mol order in place) and he is costing me a fortune in legal fees atm too.

Hi @Timeforsinging81,

The Child Maintenance Service (CMS) calculates the amount of child maintenance (CM) payable based on the gross weekly income of the paying parent. This can be income from employment or self-employment. As your ex has a business trading online the CMS can make a calculation based on the income from that business. You can find more information on the Gingerbread website about how the CMS makes a calculation.

The CMS doesn’t automatically take unearned income or assets into account in the initial calculation of CM, but you can ask the CMS to look again at sources of income such as capital and assets which weren’t included in the calculation. They can look at income from assets, such as rental income from property or interest from capital or investments which is at least £2,500 per year, or assets worth over £31, 250. You would ask the CMS to take capital or assets into consideration by requesting something called a revision which you would have to do within 32 days of the date of the original calculation.

You can also ask the CMS to look at the other parent’s income which may not have been included in the original calculation by asking for a variation. There are four specific grounds on which you can ask for a variation, and these include having earned income, unearned income, or assets which were not included in the original calculation. An application for a variation can be made at any time and you can apply on more than one ground.

The rules around challenging your CM calculation are quite complex but you can find out more about asking for a revision or variation here or you can contact the Gingerbread helpline to speak to an adviser.

There’s usually a £20 application fee to apply to the CMS but if you’ve experienced domestic abuse then you don’t have to pay the fee.

Civil Legal Advice can assess if you are eligible for legal aid to help with the cost of your legal fees.

@chocolatespiders

I would like to know if someones calculation for maintenance is based on say £10.000 a year but they then earn £15.000 that year do the CMS somehow recoup the money that is owed on the higher earnings? Thank you

Hi @chocolatespiders,

If the calculation was based on the previous year’s income of your child’s other parent and their income has now increased by at least 25 per cent, you can ask the Child Maintenance Service to recalculate your award based on the change of circumstances. This is called a supersession. You can request a supersession at any time. If you’re entitled to more child maintenance the decision will take effect from the date you asked for the supersession and you will be entitled to any extra child maintenance awarded from that date. You can find more information on the Gingerbread website about asking for a supersession.

@surlycurly

My ex has moved to Norway. How do I get payments from him when he eventually starts working? He's not paying anything at the moment and I doubt he'll suddenly volunteer to when he finally gets a job.

Hi @surlycurly,

You can't use the Child Maintenance Service if your child’s other parent lives abroad unless they are working for a UK based company or the UK government. You could make a family-based arrangement which is an informal arrangement between you and your child’s other parent. Your child’s other parent has to agree to pay child maintenance to you, and your agreement is not legally enforceable.

It sounds like this will not be an option in your case so you could apply for a court order that can be enforced in the country where the other parent lives. This is called a Reciprocal Enforcement of Maintenance Order (REMO). The country your child’s other parent lives in must be a member of the REMO scheme. Norway is a member of the scheme.

Once the court order is made you can apply to have it enforced in the country where your child’s other parent lives. Staff at your local magistrates’ court should be able to help you complete the forms and send them to the relevant place.

@JeSuisPoulet

I stopped asking for maintenance when I received a letter from CSM saying I would have to go to mediation with my ex to continue to claim. He was only paying the minimum as it was (his pay magically dropped around 45k after the hearing) and when we had the court hearing several years before I had requested to sit apart from him due to his aggression which the judge noted and also let us leave separately.

I just saw this thread pop up and thought I would check this is still the case in 2020?

Hi @JeSuisPoulet, There is no requirement to go to mediation with your ex in order to use the Child Maintenance Service (CMS). You don’t say whether you had a court order for child maintenance through. If this is the case you can’t apply to the CMS within the first year of having an order and this is possibly why you were advised to mediate but we can't be sure this is the case without more information. You may want to call the Gingerbread helpline and speak to an adviser about your situation.

@notlonguntilchristmas

Question please. My ex has never paid any maintenance, although I have made 3 applications. He has a home in the UK, works for a UK employer and is ex-armed forces (pension) - but by travelling abroad a lot and declaring himself non-resident, he seems to be able to avoid providing any support for his son. Is there anything I can do?

Hi @notlonguntilchristmas,

The Child Maintenance Service (CMS) can only make a child maintenance calculation if a parent is ‘habitually resident’ in the UK. A person is habitually resident if they’re ordinarily resident in the UK and have been for an appreciable period of time. ‘Ordinary residence’ means ‘residence for a settled purpose’. There’s no comprehensive list of factors that are relevant when deciding whether a person is habitually resident in the UK. A decision must take into account all of the person’s circumstances and intentions. Some of the most important factors that are considered include:

• The person’s usual centre of interest or connections to a particular place;
• The length, continuity and purpose of residence in the UK;
• The length and purpose of any absence from the UK; and
• The nature of the person’s work.

The following principles have been established by case law:

• A person can habitually reside in more than one country, or in none.
• A person can continue to be habitually resident in the UK even though they are absent from the UK for some time e.g. because they have employment and accommodation elsewhere.
• There is no minimum period of time required to have been living in another country before a new habitual residence can be established. It can be as little as one day.
• A person who leaves the UK intending never to return to reside stops being resident in the UK on the day they leave. The intention never to return must be a settled intention and not to see how things will work out in another country.

Even if your ex isn’t habitually resident in the UK, the CMS can still make a calculation if he’s working for a company that’s based and registered in the UK.

If you’ve made an application to the CMS and a decision has been made that your ex isn’t habitually resident in the UK and that they are unable to make a calculation, you can challenge this decision if you consider that he is habitually resident, or if he’s working for a company that is based and registered in the UK. You can challenge the decision by requesting a revision, also know as a mandatory reconsideration. If you don’t agree with the mandatory reconsideration decision, you can appeal. You can find more information about mandatory reconsiderations and appeals, including the time limits for applying, on our website here.

Alternatively, if your ex claims to reside in another country, you may have another option. You may be able to apply for a court order which could then be enforced in the country your ex claims to reside in. The process of obtaining a court order for a paying parent who lives abroad is called a Reciprocal Enforcement of Maintenance Order (REMO). The country your ex claims to reside in must be a member of the REMO scheme.

If you intend to challenge the CMS decision, then it probably wouldn’t be a good idea to pursue the REMO option at the same time, as this may weaken your case that the CMS has jurisdiction. If you’ve already requested a mandatory reconsideration of the CMS decision and have appealed against it, and have been unsuccessful, then you may wish to consider the REMO option if the country your ex claims to reside in is a member of the REMO scheme.

@Burnshersmurfs

My ex is Italian and lives and banks mainly in Italy, but works internationally for a Cruise ship company as a consultant. what hope do I have of getting regular maintenance? at the moment I get it irregularly on a voluntary basis, but it's very much used as a weapon of control.

Hi @Burnshersmurfs,

As your ex lives abroad, you can’t use the Child Maintenance Service (CMS) to arrange child maintenance unless your ex is:

• A UK civil servant or works within Her Majesty’s Diplomatic Service, or
• A member of the armed forces, or
• Working for a company that is based and registered in the UK, or
• Working on secondment for a UK regional health authority or local council.

From the information you have given about the work your ex does, it doesn’t sound like any of the above are likely to apply.

If you can’t use the CMS and the voluntary payments are not working well for you, you may wish to consider applying for a court order that can be enforced in Italy.

The process of obtaining a court order for a paying parent who lives abroad is called a Reciprocal Enforcement of Maintenance Order (REMO). Italy is a member of the REMO scheme.

You can download and fill in form REMO 8 to apply for a child maintenance decision. Once the order is made you can apply to have it enforced in Italy. Staff at your local court should be able to help you complete the forms and send them to the relevant place. You can search for your local court here.

@CodenameLevonelle

My ex is furloughed on 80% of his usual salary. He is paying 10% of what he should. CMS have also recalculated based on HMRC records of the last 3 months saying he has had a drop in salary but it's not the 25% drop needed to reduce their calculations but won't elaborate. How can I find out if this is correct if the CMS won't tell me the facts? Also, how can I ensure they do pursue him for the arrears and not write it off?

Hi @CodenameLevonelle,

You can ask the Child Maintenance Service (CMS) to look at the calculation again if you don’t think your ex’s income has reduced by as much as 25 per cent. You would do this by asking for a revision, which is also known as a mandatory reconsideration. You can find more information about asking for a revision here. This process may take longer than usual due to the redirection of resources away from the CMS during the covid-19 crisis but the CMS has stated it will update calculations as soon as possible.

Similarly, the CMS has stated it will pursue arrears and recommence enforcement action as soon as possible once the health emergency has stabilised. Unfortunately, the CMS has not provided further details about when recovery of arrears might resume.

This is obviously very difficult for parents who rely on CM, and who may have had their own income already reduced because of covid-19. You may want to make a formal complaint to the CMS and ask your local Member of Parliament (MP) for support. You can find details of the CMS complaint procedure here and find your local MP here. You can also sign up to Gingerbread’s #FixTheCMS campaign which is supporting parents in making a legal challenge over the failure of the CMS to collect child maintenance payments.

@Aeris1

My ex works 0 hour contracts for a few companies and just reduces his hours to 0 when a deduction of earnings order is set up and increases his hours at another job. He has been doing this for nearly 5 years. My little boy is lucky to get two small payments a year and the ex has built up a lot arrears. I have spoken to the CMS they call him a job hopper and say they can put things in place but never do. How is waiting 5 years to get this sorted out an acceptable way for the CMS to work. It's a rubbish system. Fortunately I don't need my ex partners money but some families do and it's disgusting that children miss out because fathers dodge paying for them.

Hi @Aeris1,

Unfortunately it’s not uncommon for a person to repeatedly move between jobs to avoid deduction from earnings orders (DEOs). There are a number of different enforcement options available to the CMS if a DEO doesn’t work. These include: regular deduction orders and lump sum orders (money taken directly from a parents’ bank account), and if a liability order is obtained, action such as referral to bailiffs and charging orders can be put in place. To find out more about the different enforcement powers, see our webpage on the subject.

If you haven’t done so already, you could make a formal complaint about the way that CMS has failed to enforce your maintenance payments and ask them directly to pursue a different method. The CMS has a set complaints procedure which you can follow and you may also consider speaking to your local MP for support. You can find details of the CMS complaint procedure hereand find your local MP here. You can also sign up to Gingerbread’s #FixTheCMS campaign which is supporting parents in making a legal challenge over the failure of the CMS to collect child maintenance payments.

@SometimesImABirdbrain

My ex-DH is on a low income at the moment which he uses as an excuse to pay zero maintenance but lives off high rental income from property assets worth £2m. Is it right that I can't claim any of that from him for our 4 children?

It is also grossly unfair that he can argue that since we have a 50:50 arrangement, he doesn't need to pay child maintenance. So yes, he is covering food and utilities (heating etc) when they are with him but that is it and extremely negligible given he does not pay a penny towards all the other very significant living costs e.g school dinners, uniforms, clothing, school trips, their phones bills. I cover all those on top of my share of food/utilities etc. I'm lucky to be able to afford it myself but that is not the point.

Hi @SometimesImABirdbrain,

Under the Child Maintenance Service (CMS) rules, if the CMS decides that two parents share the day to day care of a child equally, neither parent is liable to pay child maintenance to the other parent. If the CMS decides that one parent provides day to day care to a lesser extent than the other parent, they would be liable to pay child maintenance to the other parent.

These rules are set out in regulation 50 of The Child Support Maintenance Calculation Regulations 2012 which you can find here.

The regulations state that if a parent makes an application to the CMS and they are receiving Child Benefit, it is assumed, in the absence of evidence to the contrary, that they are providing day to day care to a greater extent than the other parent. In this situation the onus would be on the parent not in receipt of Child Benefit to provide evidence that they are providing day to day care to an equal extent. There is no definition of ‘day to day care’ or any information about what evidence will be taken into account.

If the CMS decides that one parent provides day to day care to a lesser extent and is liable to pay child maintenance, the parent has a right to challenge this decision if they disagree with it. They can do this by applying for a mandatory reconsideration, and they can appeal to a tribunal if the decision is not changed.

If the CMS decides that your child’s other parent is liable to pay CM you can ask them to take into account high value assets or unearned income by asking for something called a variation. You can find more information about how to request a variation here.

In some cases a parent may be able to apply to the family court for child maintenance. Decisions made by family court judges may differ to the CMS rules about shared care. You’d need to seek advice from your solicitor about this.

@22WR

My ex partner has over £10,000 of arrears across the old CSA or newer CMS. It feels like I have to constantly chase the CMS for them to even make any attempts at seeking any payments. They have told me as they're unable to ascertain an address there's nothing they can do right now, however I have provided accurate details that he is residing with his father. Previously I've also given them details of when he's been living with a partner. I don't know what else to do.

Hi @22WR,

I’m sorry to hear that you are having difficulty in getting the CMS to enforce your ex partner’s Child Maintenance arrears.

As you may be aware, the CMS can use more than just a paying parents’ address in order to contact them. If you haven’t already done so, make sure you have provided as much information as you can about your ex partner to the CMS. For example this could include your ex partner’s employer or former employers, his telephone number, email address, website etc.

The CMS also has the ability to access information held by government departments and organisations, such as Jobcentres, HMRC or the DVLA, so you could ask them if they attempted to trace your ex partner this way?

There are a number of enforcement options available to the CMS, including deduction from earnings orders, which means may be possible for them to retrieve the outstanding child maintenance without needing your ex partner’s current address. You could check to see whether they have pursued this and all other enforcement options.

If you feel that the CMS has not used the information you have given them to help contact your ex-partner, or that they have not pursued all of the options available to them, you may want to consider making a formal complaint. This may trigger the CMS to take a fresh look at your case and to make sure that all avenues have been explored in seeking back your arrears. To find more about complaining to the Child Maintenance Service, see here and here.

It might also help to make contact with your local MP if you have previously tried to complain but not got anywhere. You can find your local MPs contact details by looking here.

If you’re still unsure how to take this forward with the CMS, please speak to one of the advisers on our helpline who will try to help you further.

@Melbest89

My ex partner earns 46k for a hgv company so he has been working all through the pandemic, but as soon as lock down happened he stopped paying support of £540.93 a month which includes arreas that have been on for 10+ years. I chased him for payments but has been very non compliant. During thus time its has come to my attention that not also does he work full time but also works partime for his self employed business since jan2020 that he has failed to mention to cms or even to HMRC, i have had to inform them. CMS have not done anything about either issues. I have always had problems with either late payment or non payments but yet CMS comes down on the paying parents side after I managed to get DOE put in last July through non payments the NRP kicked up a fuss and CMS reverted in back to direct pay and advised me and him if he was late paying or a short full in payments again it would go DOE no questions asked, unfortunatley when this happened again and I informed CMS of this, they advised that was illegal and could not be done and had to follow there procedures for non payment. I do not understand why when we was moved over from CSA to CMS why the DOE did not follow over to as he had one in place with CSA due to nonpayment and non complience. All this has done is caused financial difficulties for my family, when he has a legal right to help support our children but chosses not too and he gets away with it cause he can play the game and know nothing will happen to enforce payments etc. I want to know will once everything is back up and running will enforcement happen to collect all that is owed or will it just add to the arreas to the next annual review and take more years to pay off. 10 years is along time for arreas to be still on account.

Hi @Melbest89,

I’m sorry to hear your ex partner is not currently paying child maintenance. Unfortunately the Child Maintenance Service (CMS) is running a reduced service at the moment which means they are not taking enforcement action. According to the CMS, staff members have been transferred to other departments in the Department of Work and Pensions to help cope with the surge in benefit claims throughout the Covid-19 pandemic.

We have been informed that as soon as the situation settles and the CMS returns to its usual service, it will ensure that calculations are adjusted and enforcement action is taken as soon as possible to ensure that receiving parents do not miss out. The CMS has also said that it intends to ensure that full enforcement action is taken on those paying parents who have deliberately manipulated the reduced service of the CMS to avoid paying child maintenance. If you feel this has happened in your case, make sure you inform the CMS of this so they can take the urgent enforcement action they have committed to.

Whilst the CMS has said it will enforce arrears and readjust calculations as a priority once the situation has stabilised, it has not said it will enforce historical arrears at the same time. Therefore if you are owed arrears for the period where CMS are running a reduced service, it follows that they would attempt to recover these as a priority but not arrears that were already being recovered gradually through the current calculation. However, we cannot predict how the CMS will act in individual cases so it’s important to continue to continue to communicate with the CMS on this issue.

As you have discovered that your ex partner has additional income that neither the you or the CMS were aware of, the current maintenance calculation is likely to be incorrect. The normal process would be for you to challenge the calculation through one of the following mechanisms revision, supersession or variation – see here to work out which one best applies. It sounds as though you may have already taken this step and unfortunately processing challenges to calculations may be take longer than usual or may not happen until after the CMS service has ‘stabilised’.

We recommend that if you are frustrated with the way the CMS is operating at the moment or the way it is handling your case, you consider making a formal complaint and contacting your local MP. You can find out how to make a formal complaint here and in this CMS guide. You can find your local MP here.

@Dancingdayo

Sorry long post

September 2017 I applied to CMS, because my self employed ex had decided to stop paying our family agreement of £260 a month, and suggested I go to CMS.

During this time he had just moved his new girlfriend in (three months later she was his wife) Anyway, tax return showed earnings of under £10k which I knew was incorrect, he was actually the one who suggested paying £260 a month years before because he knew he earned so much more.

I requested MR, then variation on the grounds he was diverting income both declined but I had evidence of his business contracts, pervious earnings and also that he'd paid for his house cash, and that his girlfriend used an alias on his business as administrator. All were declined not enough evidence, so, I requested it was sent to financial investigation unit. A year later I had a letter saying the investigation had been completed and they found earnings of over £115k. He disputed it obviously and that's when he applied to tribunal. The CMS backdated my claim and my arreas are now over £22k.

During this time, October 2019 my ex has changed his self employed status to limited company and his wife is also director.

9th January 2020 - My ex attended the first hearing with his wife, who is representing him and is not an accountant. I didn't attend because they forgot to send me a letter; it didn't matter as they gave him directions, there was nothing for me to do at this stage.

The directions were to provide the following:-

• Evidence of income and expenditure tax year 2016/17
• all bank statements for all accounts held, jointly and solely that show transactions from April 16 - December 17
• Mr ...... Should provide a narrative to explain any deposits into the accounts

He was given 28 days to provide this information, he requested an extension which was granted but only 7 days, and he requested I didn't get to see the bank statements but that was declined. CMS then had 28 days from the receipt of the information to check their evidence against the FIU findings and send any new information in; if they felt they were incorrect etc.

I received copies of all evidence sent in, my ex only produced the bank statements with no explanation, no evidence of income and expenditure and the statement clearly show over £115k deposited into his account. The evidence of the house Purchase was shown on the statements and he pays large amounts to his wife reference 'Admin' and when I say large I mean £6k a month for admin.

Due to covid this has now been on hold but finally last week I received an email stating they are back on my case, and I should have a date soon. 🤞🏼🤞🏼

What worries me now is during covid he's had to claim the first two months due to not working (understandably) so CMS say he's claimed UC on his tax return of £10k plus he's also now received self employment grant but I'm still on a nil assessment. He's told me himself that he is back in work, but obviously no records of earnings because he's a new limited company. Is this down to me now to prove his earnings? I really don't want to go through all this again. Now he knows there's been an investigation, he's switched on to all the loopholes even more so, hence why his wife is now company director and it will be very difficult for me to prove anything.

I have recently wrote to my MP who has replied instantly saying she is happy to help and I've completed a data protection form for for her to speak on my behalf.

Is there anything else I should be doing?

Hi @Dancingdayo,

You’ve explained that your ex has had several changes in his circumstances - his change of employment status to a limited company in October 2019, not working for a couple of months during covid, his receipt of a grant from the Self-employment Income Support Scheme, and most recently returning to work again for his limited company. From what I understand, these changes have all occurred since the decision that your ex is appealing against to a tribunal. This means that they aren’t relevant to his appeal.

However, if the CMS has made a new decision that he is not liable to pay anything from now on following a change in his circumstances, unfortunately this does mean that you will need to go through the same process that you’ve been through before if you want to challenge this new decision. The following advice applies if the CMS has formally notified you in writing of the nil liability decision. If your maintenance payments have been reduced to nil but the CMS hasn’t yet formally made a new decision, the situation is more complicated so please call our free helpline on 0808 802 0925, as it isn’t possible to go through all possible situations here. If the decision has been made, it sounds as though this nil liability decision was made following your ex reporting to the CMS that he was out of work for a short period of time during covid. It’s not clear whether you or your ex have reported to the CMS the further changes that he has since received the payment from the Self-Employment Income Support Scheme and has also returned to work, although I think it’s likely that you have.

With regards to the payment from the Self-Employment Income Support Scheme, you could state that you would like to request a revision/and or supersession of the (nil liability) decision. We don’t know how a payment from the Self-Employment Income Support Scheme will be treated i.e. whether the CMS should take it into account over the period of the previous 3 months it is intended to compensate for, or only from the date the payment is received.

One ground for a supersession is that the decision was made in ignorance of, or a mistake about, a material fact. This could arguably apply here in that the nil liability decision was based on your ex’s income when he was not working, but as the Self-Employment Income Support Scheme payment is a retrospective payment for March-May then his relevant income is actually higher than what he reported, because he hadn’t yet received the payment from the scheme. This is new territory so I’m afraid it’s not possible to give more definite advice on this issue at this time. If the CMS decides not to supersede the decision, you can request a mandatory reconsideration. If the decision still isn’t changed you could appeal. The appeal tribunal can consider what period the payment from the Self-Employment Income Support Scheme should be taken into account over.

With regards to your ex returning to work, you could request a supersession if you haven’t already done so, because a change of circumstances is another ground for a supersession. Once this has been reported, the CMS should seek information about his current earnings. If he’s an employee of his own limited company, then there should be information about his wages from HMRC if he is reporting these properly through the PAYE system. The CMS can also ask your ex to verify his current income.

If he’s paying himself a low salary, or no salary, but you believe that his company is making a profit, then unfortunately it would be a case of requesting a further variation of the new decision (since his return to work) if/once this has been made. You could apply for a variation on the grounds of diversion of income as you did before. You should give as much information as you can, such as that his wife is also a company director and that you think he’s using various loopholes to reduce the amount of income taken into account. You may also have other grounds for a variation, including if you think he could have unearned income of at least £2500 a year, such as dividends for example. You can find further information about the different grounds for a variation on our website here. You can apply on as many grounds that are relevant to your case. You could, at the same time, ask for the case to be referred to the financial investigations unit as you did before. If the decision isn’t changed you could then apply for a mandatory reconsideration. If the decision still isn’t changed you could appeal. The onus isn’t on you to prove his income, but as you know from experience it could take a long time for his finances to be investigated.

Unfortunately you may find there are currently significantly longer delays with the CMS decision making process, including following an application for a supersession, variation or mandatory reconsideration. This is because the CMS has redirected part of its resources to support the increase in benefit claims during the Covid-19 crisis. This is an issue that you may wish to raise with your MP. It’s also due to flaws in the system that paying parents can use loopholes to avoid paying the right amount of maintenance, and that you and many other single parents have to repeatedly go through the process of challenging decisions due to the paying parent using loopholes and reporting changes in circumstances following a decision. This is another issue that you could raise with your MP. That’s good to hear that your MP is happy to help.

@shitwithsugaron

My exH has a DC (that he's never met ) and has paid maintenance for as long as I've known him. He job hops a lot and has built up arrears of around 4K last time I was aware. We've got an arrangement he sticks to 'when he has the money' and also doesn't pay me when the CMS take more from him due to his arrears. When I've spoken to him about it, he said if I apply for maintenance I'll get nothing because he already has a DC and is in arrears with that maintenance. Is this correct?

Hi @shitwithsugaron,

The fact that your ex-husband is liable to pay maintenance for another child and is in arrears doesn’t mean that he isn’t liable to pay you maintenance, but it does affect the amount he’s liable to pay. If you apply to the CMS, they would take into account his liability for another child and this would reduce the amount of maintenance you receive. The amount your ex-husband needs to pay would be split between you and the other receiving parent. This is called apportionment.

The amount that he’d be liable to pay will depend on his income, how many children you have, and whether your child/ren stay overnight with your ex-husband for at least 52 nights a year. The fact that he’s in arrears with the maintenance to the other receiving parent isn’t relevant to the calculation. The CMS would make a decision about how much he’s liable to pay you. If he doesn’t pay the maintenance that he’s liable to pay, the CMS can take enforcement action. You can find more information about applying to the CMS and how they calculate child maintenance on our website here, and information about how the CMS can enforce payments here.

@NameForAChange

Thanks for doing this! After I split from exH, it took a few years for the divorce to be finalised, during which time he frequently missed or delayed maintenance payments. He also set himself up as self employed. As a result it was court ordered as part of divorce that he would pay a set amount monthy for 2 years from the date of the divorce. The agreement expires in Sept this year.

I know there is no chance of him being honest with me about his current income, or of being able to agree a new amount amicably.

When should I contact the CMS? Can I do it before the court order expires? I am worried that if I leave it until September it will take a while to sort out and I will be left without maintenance again.

Hi @NameForAChange,

Having a court order for child maintenance prevents an application being made to the CMS within one year of the order being made. As you have had your order for over one year you could make an application. If you make the application before the court order expires the CMS must notify all the parties and the relevant court when it makes its calculation and the existing order will cease to have effect.

The Child Maintenance service (CMS) calculate how much child maintenance you should be paid by using the latest information about the other parent’s gross income held by Her Majesty’s Revenue and Customs (HMRC). When someone is self-employed this is usually the figure declared as profits on their latest available self-assessment tax return.

If you think the information that’s been used is wrong, you can challenge this. You can ask the CMS to look at their decision again, also known as a mandatory reconsideration, but there are time limits for this.

If you think your child’s other parent has any unearned income over £2,500 a year or has been diverting income to make it look like he earns less you could ask for a variation. See our factsheet challenging your child maintenance calculation for more information.